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 peculiar at all. and better for it." 
 
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 .
 
 REPORTS 
 
 OF 
 
 CASES IN CHANCERY, 
 
 ARGUED AND DETERMINED 
 
 COURT OF APPEALS, 
 
 OF 
 
 SOUTH CAHOLINA, 
 
 FROM JANUARY, 18^3, TO JANUARY, 1834, BOTH INCLUSIVE. 
 
 BY W. 11. HILL. 
 
 VOLUME I. 
 
 CHARLESTON , S. C. 
 McCARTER i Co., No. 116 MEETING STREET. 
 . 1858.
 
 JUDGES OF THE COURT OF AFPEALS. 
 
 Hos. DAVID JOnXSOX, President. 
 nox. J. B. O'XEALL. | Hos. WILLIAM IIARPER. 
 
 CIIANCELJ.OUS. 
 
 UoN. HEXRY W. DE SAUSSURE. | IIos. JOB JOIIXSTOX.
 
 TABLE OF CASES 
 REPORTED IN THIS VOLUME. 
 
 [The folios in this Table refer to those marked with an asterisk, * ] 
 
 A 
 Adams and others v. Chaplain and 
 
 others, 265 
 
 Alexander, Miller v 25 
 
 Alexander and others, Green v 138 
 
 Allen, Pi ingle and others v 135 
 
 Ardrian and another, Cordes v 154 
 
 B 
 Bankhead, Adm'r, r. Carlisle, Adm'r 357 
 
 Barber, I'eay & Pickett v 95 
 
 Benoist, Ailm'x f. Poirier, Adm'r... 217 
 
 Boon and wife, Fraser v 3(j0 
 
 Bfiozer r. Wallace and others 393 
 
 Bowman, Brock v. 338 
 
 Brock I'. Bowman 338 
 
 Brown and others v. M'Donald 297 
 
 Burgess t>. Heape 307 
 
 C 
 
 Cabeen v. Gordon and others 51 
 
 Calmes, Ex parte 112 
 
 Capehnrt and wife and others v. The 
 
 Adm'r of Huey 405 
 
 Carew, IMunkot i' 10!' 
 
 Carlisle, Adm'r, Bankhead v 357 
 
 Chaplin and others, Adams and oth- 
 ers V 265 
 
 Chestnut and wife and others v. 
 
 Strong, Kx'or 122 
 
 Clarke and wife v. Saxon 09 
 
 Cole and otliers i'. Creyon 311 
 
 Collier and wife and others, Robert- 
 son and others v 370 
 
 Connor, Maxwell i' 14 
 
 Cordes r. .\rdrian and another 154 
 
 Creyon, Cole and others i- 311 
 
 D 
 
 Daniel, M'CuUou;,h v. (Note a) 28 
 
 Dawkins & Littlcjohn v. Smith 3G9 
 
 Dawson v. Scriven 177 
 
 Drayton i'. Grimke, Adm'r 224 
 
 E 
 
 Edmonds & wife and others, M'Mee- 
 
 kin I' 288 
 
 Eigleberger and others r. Kibler 113 
 
 Evans and others, Vaughan and oth- 
 ers I' 414 
 
 Ex parte Calmes 112 
 
 Ex parte Galluchat 148 
 
 Ex parte Leith, Ex'or 152 
 
 Ex parte M'Cleland 412 
 
 Ex parte Smith.... 
 Ex parte Wiggins. 
 
 140 
 353 
 
 F 
 
 Farr t'. Farr, Ex'or 387 
 
 Follin and wife, White and Hunt v.. 187 
 
 Foote, Adm'r of, v. Van Ranst 185 
 
 Fraser y. Boone and wife 360 
 
 Frazier and wife i' Vaux, Ex'or 203 
 
 Frip r. Talbird 142 
 
 G 
 
 Galluchat, Ex parte 148 
 
 Gordon and others, Cabeen r 51 
 
 Green v. Alexander and others 138 
 
 Grimke, Adm'r, Drayton v 224 
 
 H 
 
 Ilaigood V. Wells 59 
 
 Hale and others, Jugnot v 430 
 
 Iliirtley, Hillegas and wife and oth- 
 ers V 106 
 
 Heape, Burgess v 397 
 
 Heath and another, Muckenfuss v... 182 
 Hillegas and wife and others i'. 
 
 Hartley 106 
 
 Ilinson and wife r. Pickett 35 
 
 Hopkins, Ex'ors of, i'. Mazvck and 
 
 others .'. 242 
 
 Flopkins and others, Terry, Adm'r y. 1 
 
 Hubbell and other, Prescott v 210 
 
 Hucy, Adm'r of, Capehart and wife 
 and others t> 405 
 
 I 
 
 Ton and others, Kinloch and oth- 
 ers V 405 
 
 Jackson, Adm'r, Skilling i; 185 
 
 Jennings and others, Spann and 
 
 Wife I' <5_* 
 
 Johnson, Volentine i' 49 
 
 Johnston and others, Magwood & 
 
 Patterson v — '^ 
 
 Joyner, Ex'or, and others, Screven v 252 
 
 Jugnot V. Hale and others 430 
 
 K 
 
 Kershaw and others, Perkins and 
 
 others v ^^^ 
 
 Kibler, Eigleberger and others v 113 
 
 Kinard, Adm'r, Riddlehoover and 
 others v 2""
 
 TABLE OF CASES. 
 
 Kinloch and others v. Fon and 
 
 others 
 
 L 
 
 Leith, Ex'or, Ex parte 
 
 Lever v. Lever 
 
 Loveland & Wilson v. Mansell & 
 Reid 
 
 Lyles V. Lyles, Adm'r, and others.... 
 
 M 
 
 Macon-i Adm'r, Smith & Cuttino v... 
 
 Magwood & Patterson v. Johnston 
 and others 
 
 Mansell & Reid, Loveland & Wil- 
 son V 
 
 Martin, Com'r, and Surrties, State \. 
 (Note a) 
 
 Maxwell v. Connor 
 
 Maxwell, Ex'or, Smith v 
 
 Mazyck and others, Ex'ora of Hop- 
 kins r 
 
 M'Cleland, Ez parte 
 
 M'Craven, Adm'r of, Pinchback i... 
 
 ^rCraven, Adm'r of, I'inchback v... 
 
 M'Culloiif//t V. Daniel (Note a) 
 
 M'Donald, Brown and others v 
 
 M'Elwee v. Sutton & Black 
 
 M'Mcekin t^. Edmonds and wife and 
 others 
 
 Miller v. Alexander 
 
 Motte V. Shultc e»c Motte 
 
 Muckenfuss v. Heath and another... 
 
 Myers, Adm'r, v. Pickett 
 
 N 
 
 Naylor, Young v 
 
 Nesbit. Price, Ex'or v 
 
 Neufville v. Stuart 
 
 Kewman and wife «;. Wilbourne and 
 
 others 
 
 Nixon, Perry u 
 
 
 
 Osborne and others, Smith & Cut- 
 tino V 
 
 Peay & Pickett v. Barber 
 
 Perkins and others r. Kershaw and 
 others 
 
 Perry v. Nixon 
 
 Pickett, Hinson and wife r 
 
 Pickett, Myers, Adm'r r 
 
 Pinchback v. The Adm'r of M'Cra- 
 ven 
 
 Pinchback v. The Adm'r of M'Cra- 
 ven 
 
 Plunket V. Carew 
 
 Poag, Ex'or, v. Poag 
 
 Poirier, Adm'r, Benoist, Adm'x r... 
 
 Prescott V. Hubbell and others 
 
 190 
 
 152 
 02 
 
 129 
 76 
 
 339 
 
 228 
 
 129 
 
 428 
 
 14 
 
 101 
 
 242 
 412 
 307 
 413 
 
 2H 
 297 
 
 32 
 
 288 
 2.') 
 
 14f. 
 
 1H2 
 36 
 
 3S3 
 4-J5 
 159 
 
 10 
 335 
 
 340' 
 
 95 
 
 I 
 
 344 
 
 335 I 
 
 35 
 
 35 
 
 307 ] 
 
 413 
 169 
 285 
 217 
 210 
 
 Price, Adm'r of, Sinclair & Kiddle v. 481 
 
 Price, Ex'r, v. Nesbit 445 
 
 Pringle and others v. Allen 135 
 
 Purcell, Exx, Waring, Ex'or r 193 
 
 R 
 Riddlehoover and others v. Kinard, 
 
 Adm'r 576 
 
 Robertson and others v. Collier and 
 
 wife and others 370 
 
 S 
 
 Saxon, Clarke and wife v C<0 
 
 Screven r. Joyuer, Ex'or and others 252 
 
 Scriven, Dawson r 177 
 
 Scriven y. Scriven 177 
 
 Shulte & Motte, Motte i- 146 
 
 Shultz and others, Stoney & others r 405 
 Sinclair & Kiddle r. Adm'rs of Price 431 
 
 Skilling r. Jackson, Adm'r 185 
 
 Smith V. Maxwell, Ex'or l<il 
 
 Smith & Cuttino v. Macon, .Adm'r... 339 
 Smith & Cuttino v. Osborne and' 
 
 others 340 
 
 Smith Ez parte 140 
 
 Smith, Dawkins & Littlejohn i- 309 
 
 Spann and wife v. Jennings and 
 
 others 324 
 
 Spann v. Stewart and others 326 
 
 Stale V. Martin, Com'r, and Surttiet 
 
 (Note a) 428 
 
 Stewart and others, Spann v 326 
 
 Stoney and others v Shultz and 
 
 others 4G5 
 
 Strung, Ex'or, Chestnut and wife 
 
 and others r 122 
 
 Stuart. Neufville r 159 
 
 Stuckey r Stuckey 308 
 
 Sutton'& Black, M'Elwee «• 32 
 
 Talbird. Frip v 142 
 
 Terry, .Vdm'r, r. Hopkins and others 1 
 
 V 
 
 Van Ranst, .\dm'r of Foote r 185 
 
 Vaughan and others v. Evans and 
 
 others 414 
 
 Vaux, Ex'or, Frazier and wife i- 203 
 
 Voleutine v. Johnson 49 
 
 W 
 
 Wallace and others, Boozer v 393 
 
 Waring, Ex or, v. Purcell, Ex'x 193 
 
 Wells, Haipood v 59 
 
 White and Hunt v. Follin and wife.. 187 
 
 Wiggins Ez parte 353 
 
 Wilbourne, Ex'or and others, New- 
 man and wife r 10 
 
 Young V. Naylor. 
 
 383
 
 CASES IN CHANCERY 
 
 DETERMINED IN THE 
 
 COURT OF APPEALS OF SOUTH CAROIIM. 
 
 Columbia — |aitoarjj, 1833. 
 
 JUDGES PRESENT. 
 
 Hon. DAYID JOHNSON, Presiding Judge. 
 Hon. J. B. O'NEALL. | Hon. WILLIAM HARPER. 
 
 *Thomas Terry, Administrator of his wife, Martha Teny, de- r-^^ 
 ceased, v. Ferdinand Hopkins, Sen., and others. ■- 
 
 Where a widow, before her second marriage, convej's her propertj' to the children of 
 her first marriage, reserving only a life estate in a portion, to herself, and this 
 was known to her inten<led husband, the conveyance is not a fraud on his mari- 
 tal rights, but is valid. [*4]f 
 
 Where a parent gave a slave to his daughter, on her marriage, on condition that he 
 shoiild have a right to take him back, on paying his value, or substituting other 
 property; the marital rights of the husband attach, and the right of property 
 vests in' him, subject to that condition, and devolves on his administrators, after 
 his death, to the same extent, and in the same condition. [*5] 
 
 A husbiind who has administered on his wife's estate, cannot be reimbursed out of 
 it, for payments made l)y him, during coverture, on a contract of the wife before 
 m'arringe ; but he will be entitled to credit for any payment on that account, 
 since her death. [*7] 
 
 A husband, as the administrator of his wife, will not be allowed to raise an account 
 against her children by a former marriage, for her care and trouble in attending 
 to them before her second marriage, and for raising young negroes, when she 
 herself, made no such charges. [*8] 
 
 A trustee who has received money, must discharge himself by proof. [''!)] 
 
 A defendant, who in his answer, prays an account from the plaintiff, is bound to 
 render an account of any moneys due to the latter, although the bill does not pray 
 au account against hiui.[*'J] 
 
 This was a bill to set aside certain deeds, and for an account and par- 
 tition. The facts of the case, and the several questions arising out of 
 them, are presented in the following opinion of the Court delivered by 
 
 Johnson, J. In February, 1819, the complainant married Mrs. Hop- 
 
 t The syllahusp.'s in this work, are taken from side notes of edition of 1834, on pages indicated by 
 figures enclosed in brackets.
 
 6 SOUTH CAROLINA EQUITY REPORTS. [*1 
 
 kins the relict of Geo. "W. Hopkins, who died intestate, and he charges in 
 his bill in substance : — That by a partition of his estate, only one-sixth of 
 the personal estate, being an equal portion with *each of her children, 
 ^-' was allotted to the widow, instead of one-third to which she was 
 entitled bv law, and deeds executed by her, on the 19th December, 1818, 
 by which,' in effect, she confirmed it, and reserving to herself only a life 
 estate in the portion allotted to her, were procured and obtained from 
 her, by the fraud and covin of the defendant Ferdinand Hopkins, Sen., 
 and upon his representation that the property in the. negroes, which 
 constituted the bulk of the personal estate, was, in himself, were fraudulent 
 and void as to the widow. But if not, that her deeds, of the 19th Decem- 
 ber, 1818, were a fraud upon his marital rights, and therefore void. 
 
 The answer of Ferdinand Hopkins, Sen., positively and unequivocally 
 repels the allegation of fraud, on his part, and states tliat during the re- 
 volutionary war, his father David Hopkins, gave to himself and his brother 
 Newton Hopkins, the stock from which these negroes descended, in trust 
 that they would divide them equally between themselves, and their bro- 
 ther G. W. Hopkins the intestate, and a sister, Mary ; which had been 
 done to the entire satisfaction of all parties. That the intestate took the 
 exclusive possession of those allotted to him, in 1798 or '9, and con- 
 tinued in possession of them, up to the time of his death, and that they 
 remained in possession of his widow up to the time of the partition, and 
 that he never had at any time, pretended any claim to, or interest in the 
 negroes. In connection with this subject, it appears that the defendant 
 Ferdinand Hoi)kins, Sen., had by deed dated the 30th December, 1790, 
 conveyed to G. W. Hoitkins, his ])ortion of the negroes, given l)y their 
 father, and upon the partition of iiis negroes amongst his children and 
 widow, on the 19lh December, 1818, he conveyed to each child (with the 
 exception of Mrs. Glenn, who seems to have ijeen forgotten), the portion 
 of these negroes allotted to them, reciting that the title was in himself. 
 This deed was found by the complainant, amongst the papers of G. W. 
 Hopkins, after bill fded. In relation to this matter, he states in his an- 
 swer that the deed to George W. Hopkins, of 1799, had been forgotten 
 both by himself and the widow, when the deeds of 1818, were executed, 
 and that it was done to avoid any question about his rights. He denies, 
 also, unequivocally, that he exercised any influence over Mrs. Hopkins, 
 ^o-i to procure her* to execute the deeds of the 19tii December 1818, 
 
 -^ by which reserving a life estate, she relincpiishes her interest to her 
 children, and avers that it was done wholly of her own accord. 
 
 On the death of George W. Hojikins, in 1805, his widow and the 
 defendant Ferdinand Hopkins, Sen., administered on his estate ; and in 
 the inventory made l)y them and returned to the Ordinary's Oflice, these 
 negroes are included : and it is also worthy of remark, that in the deeds 
 from Mrs. Hopkins, of the 19th December 1818, written by F. H., Sen. 
 it is recited that the negroes and other property therein contained, are a 
 part of the -estate of George W. Hoi)kins. Thus much I have collected 
 from the documents before me, and I will now proceed to extract from 
 the parol testimony what relates to their questions. 
 
 William Hughes a witness for the defendant, stated that before ^Irs. 
 Hopkins made the deeds of the 19th December, 1818, she stated in a 
 conversation with him, that " she intended to convey her property to her
 
 *o] COLUMBIA, JANUARY, 1833. 7 
 
 children, but wished to reserve a life estate in herself ;" and he had another 
 conversation with her after the conveyance was executed, but she did not 
 then speak of its particular provisions. Ephraim Lyles, another witness, 
 states that he was twice sent for to write this deed ; upon his going, he 
 advised Mrs. Hopkins " to send for the defendant, Ferdinand Hopkins, 
 Sen., and when he came, the witness being informed that the right of the 
 l)roperty was in him, suggested to hira, that he ought to convey it from 
 himself, and that Mrs. Hopkins then executed the deeds to her children." 
 She acted, says this witness, against the advice of the defendant, 
 Ferdinand Hopkins, Sen. He advised her, "to hold the staff in her 
 own hands." 
 
 Opposed to this, is the evidence of Mrs. Terry, to whom Mrs. Hopkins 
 stated, about a year before her marriage with the complainant, that the 
 title of these negroes was in the defendant Ferdinand Hopkins, Sen., and 
 that he had frequently "urged her to make the titles to her own children," 
 and that they were to be so made. Afterwards she complained that it 
 was a hardship, as she had had so much trouble in raising the negroes, 
 and could not now call one of them her own. Burr Head also states, 
 that shortly after the division of the negroes, *he heard her express r-^. 
 much dissatisfaction concerning one which had fallen to her daughter ^ 
 Mrs. Glenn, which she had raised about the house, and wanted, and Mrs. 
 (ilenn would not exchange with her. But expressed no dissatisfaction 
 about the deeds. 
 
 These are the leading facts connected with this question, and they leave 
 in my mind no doubt that the defendant, Ferdinand Ho[>kins, Sen., acted 
 with perfect fairness in this transaction The entire absence of any in- 
 terest on his part, — his never having pretended any claim — his returning 
 them in the inventory, as a part of the estate of G. W. Hopkins — his 
 advice to Mrs. Hopkins, " to hold the staff in her own hand" — are all 
 utterly inconsistent with a design on his part, to use an improper influence 
 over Mrs. Hopkins, in any disposition she might think proper to make 
 of her interest, in this part of the estate: and his account of his having 
 forgotten the deed to G. W. Hoi)kins, made in the partition on the 30th 
 December, 1799, is tlic only rational solution of the incongruity arising 
 from his having executed the subsequent deed of 1818. It follows then 
 that the deeds executed Ijy Mrs. Hopkins to her children were voluntary 
 on her part, and binding. The Chancellor has so decided, and so far as 
 that question is concerned the appeal must be dismissed. 
 
 2. The second question arising out of this state of the facts, is 
 whether supposing the deeds voluntary, on the part of Mrs. Hop- 
 kins, they are a fraud on the marital rights of the complainant, and 
 therefore void. A 
 
 The fortune of the intended wife is most frequently a weighty con- 
 sideration and a strong inducement to the marriage contract, and the 
 happiness of both the parties may, in a good degree depend on the 
 observance of good faith, with respect to it; and the genereral rule, 
 very clearly, is^hat if pending a treaty of marriage, the intended wife 
 makes a secret voluntary disposition of her property, and the marriage is 
 a fraud upon tlie martial rights of the husband, and void In Hunt & 
 Matthews, 1 Yern. 408, a widow before she married again, disposed of the 
 greater part of her estate, for the benefit of her children by her first mar-
 
 8 SOUTH EQUITY CAROLINA REPORTS. [*4 
 
 riao-e and it became a question whether that disposition was void as to 
 * ' the second husband, who had married her a* short time after ; and 
 *^^ it was held that it was not — the Court deeming it a conscientious 
 thino" in the wife to provide for such children, before she placed herself 
 in the power of a second husband. And I remember that that rule is 
 stated in the case of Jones v. Cole, brought up to this Court, from Xew- 
 berry some time ago, but not yet reported, when the husband also had 
 notice. But Roper, in his treatise on the laws arising from the relation 
 of husband and wife (page 162) questions, and I think with much show 
 of reasoning, the propriety of allowing this case, as an exception, to the 
 o-eneral rule laid down in Strathmore v. Bowes, 1 Ves. Jun. 28, & 
 Havard v. Hooker, 2 Ch. Rep 81. The objection he remarks, is not, to 
 the object of the settlement. The fault is, the fraud committed by it, on 
 the second husband, and it would seem that, as to him the effect must be 
 precisely the same, whether the disposition was in favor of the children 
 or others. This case however steers clear of this difliculty. There is in 
 the first place no proof that the the treaty of marriage was on foot at the 
 time these deeds were executed. They are dated on the 19th of Decem- 
 ber, 1818, and the marriage was not solemnized until some time in the 
 mouth of February following ; a period too long necessarily to authorize 
 the inference that the treaty of marriage was then pending. But a con- 
 clusive circumstance is that the complainant had notice of these deeds, 
 before his marriage. The witness Lyles, told him of the deeds — Emanuel 
 Allen informed him that the negroes were generally considered as the 
 property of the defendant Ferdinand Hopkins, Sen. ; and in the Chancel- 
 lor's decree of 1825, it is said he approved and applauded it. If the 
 fortune was the inducement to seek the marriage, this would have 
 furnished a reasonable ground to have broken it off, and he will not be 
 permitted now to complain of a circumstance which was known to him 
 before he was committed. 
 
 3. At the time of the intermarriage between the complainant and Mrs. 
 Hopkins, she had possession of two negroes, Daniel and Betty, which the 
 complainant claims, in virtue of his marital rights, — the defendants on the 
 contrary claim them as part of the estate of George W. Hopkins. 
 
 The circumstances connected with these claims, appear to me to admit 
 5|,p-] of no doubt. The evidence of Thomas Booker, * James Sanders, 
 
 -^ Daniel Glenn, Wm. Wright, William Hughes, Mrs. Head, Bennett 
 Humphries, Loften Nunn, and Mrs. Nunn, make out beyond all contra- 
 diction, that Bird Booker, the father of Mrs Hopkins, gave to her, negro 
 Will, during the lifetime of her first husband, George W. Hopkins, with 
 an understanding, that he would have the right to take him back again, 
 if he thought proper, on paying the^lue for him, or substituting other 
 property in his place. Subsequently to the death of George W. Hopkins, 
 and before the marriage of his widow. Bird Booker did take "W'ill back, 
 and put in his place a negro called Phill, who on being chastised a few 
 days after, by the overseer, ran away and returned to Mr. Booker. About 
 four years after, Mr. Booker sent to Mrs. Hopkins, Daniel and Betty, 
 the negroes in controversy. Daniel was of less value than Will, and the 
 witness says, that the additional negro Betty, was sent for the purpose of 
 supplying this difference in value, and as a compensation for the loss of 
 the services of Will, during the time he had him. The circumstances
 
 *6] COLUMBIA, JANUARY, 1833. 9 
 
 relied upon by the complainant, to show that Daniel and Betty was a 
 gift directly to Mrs. Hopkins, by her father, are 1st., that neither they 
 nor Will, were included in the inventory of George W. Hopkins' estate • 
 and 2dly, that these negroes are given to her,"by the will and testa- 
 ment of her said father, dated on October, 1818, and long after she had 
 them in possession. 
 
 If, as has been assumed. Bird Booker gave Will to Mrs. H., in the 
 lifetime of her first husband, subject to the condition, that he should be re- 
 stored upon his paying value, or substituting other property, the property 
 in Will vested in Geo. W. H., subject to that condition, and Mr. Booker 
 was not at liberty to resume the property, without having first performed 
 the condition — these rights devolved on the administrators of Geo. W. 
 H. precisely to the same extent, and in the same condition as they existed 
 in him, and no neglect, on the part of the administrators, to include Will 
 in the inventory, nor the subsequent act of Mr. Booker, in disposing of 
 the negroes substituted for Will, could vary them But these circum- 
 stances appear to me, to be reconcilable with the assumed state of facts. 
 It was known that Mr. Booker had reserved the right to take back Will 
 — probably his determination to do so, was known *at the time, and r-^„ 
 he was not, therefore, included in the inventory of Geo W. H.'s L' ' 
 estate ; improperly, I admit, but I can well conceive, that persons, in- 
 tending to do what was right, might not well understand the character 
 and the extent of his rights. Bird Booker had not made any formal 
 transfer of the negroes, Daniel and Betty, and he might have thought it 
 necessary to give them in his will, as confirmatory of what he had before 
 done — a very common practice, and I cannot perceive any evil growing 
 out of it. We are, therefore, of opinion, that Daniel and Betty must he 
 regarded as part of the personal estate of Geo. W. H. and accounted for 
 as such ; and the decree of the Circuit Court, in this respect, must be re- 
 versed 
 
 4. During the widowhood of Mrs. H., she purchased a tract of land 
 situated in Union District, for $2,800, on a credit, and gave her note for 
 payment. A part of this sum was paid by her, before her intermarriage 
 with the complainant. During their coverture, the complainant himself 
 paid, on account of this contract, the sum of $800, and subsequently to 
 her death, $903 82, as appears by the Report of the Commissioner of 
 July, 1831 ; and one question raised on the part of the defendant is, 
 whether he is entitled to be reimbursed out of the lands, or her personal 
 estate, for the sum paid by him during the coverture. 
 
 Mrs. Terry died entitled to a personal estate, not reduced to possession 
 by the complainant during their coverture, and after her death he adminis- 
 tered on it. It is not questioned, that in his account of this estate, he 
 is entitled to be credited with the amount paid on this contract, subse- 
 quently to her death. He was not personally liable, (Roper 74) and of 
 course it must be charged to her estate. But the claim to be reimbursed 
 the amount paid by him during the coverture, is clearly untenable. The 
 husband takes the wife cum onere ; and during the coverture, the debts 
 contracted by the wife are the debts of the husband, and that, whether 
 she brings a fortune with her or not. A common-place view of this 
 question will put it in the clearest point of view. A woman indebted 
 takes a husband ; the law makes him liable, and he pays them — who is
 
 10 SOUTH CAROLINA EQUITY REPORTS. [*7 
 
 his debtor ? How will he exact payment of the wife ? She cannot be 
 ^g-, his debtor. On marriage, he is entitled to all her goods, *and an 
 
 -I estate for her life, in her real estate. Her death cannot create a debt 
 which, before, had no existence. This rule works, perhaps, somewhat 
 harshly. A wife may owe large sums, and a corresponding estate may be 
 in expectancy, which might not come in during her life, and it would 
 seem a hardship that, if the husl)and paid the debts during the coverture, 
 he sliould not be reimbursed. But it will be remembered that the hus- 
 band takes the whole personal estate of the wife, and an estate for life, 
 in her lands. In the treaty of marriage, circumspect i>ersons look some- 
 times to the debtor and creditor sides of the account, and the apparent 
 hard.ship vanishes when it is recollected that the act was voluntary, 
 
 5. It is contended, also, for the complainant, that he is entitled to 
 compensation for raising the children of G. W. Hopkins, and the young 
 negroes belonging to the estate. 
 
 This claim refers principally to Mrs. Terry's administration of the 
 estate during her widowhood. Mrs. Terry had possession, and tlie 
 management of the whole estate, real and personal. In the account 
 stated by the Commissioner, she is charged only with the proceeds of the 
 crops sent to market, and is credited with all disbursements made on 
 account of the estate, without distinguishing for what particular object, 
 or for whose individual use. Slie herself raised no account against the 
 children, or charge for raising the young negroes. But it is now brought 
 up, for the first time, by the complainant. The annual income from the 
 estate did not greatly exceed the necessary expenditures ; and it is 
 evident that Mrs. Terry herself, supposed that as they were all subsisting 
 in common, and were all entitled to an ecjual distribution of the estate, 
 there could be no great ine(|uality in their expenditures ; and none 
 appears, from the evidence. But if that were not so, the children alone 
 would have a right to complain ; — not the complainant, because he is 
 credited with every dollar that was disbursed on account of the estate, 
 and what more would he have. Is it that he is entitled to compensation 
 for Mrs. Terry's care and iroul)le in attending to her own children before 
 he married her ? I will not do him the injustice to believe that was 
 intended. 
 
 g^n 6. It is claimed, also, for the complainant, that Ferdinand ♦Hop- 
 kins, Sr., ought to have been charged with the amount of a note due 
 by H. Head and J. Kennedy, say $274 ; — but on what ground is not stated. 
 It does a]ipear, however, that he received $.30 92 from H. Head ou 
 account of this note, which is not accounted for. The Commissioner 
 concludes that this amount was ])aid to the widow, because he has paid 
 over to her all other moneys received by him, and the necessities of the 
 estate required all its means, and because the widow managed it exclu- 
 sively. Knowing the jiarties as I do, if I were left to form a conjecture, 
 I should certainly concur with the Commissioner. But we cannot pro- 
 ceed upon conjecture. — Ferdinand Hopkins did receive this amount, and 
 unless he can account for the payment by proof, he is chargeable with it. 
 But, if it is desired, I think that the subject ought to be considered as 
 open for further proof, if it can be furnished ; and the Commissioner is 
 ordered to re-examine this item, if further evidence shall be oU'cred by 
 Mr. Hopkins.
 
 *0] COLUMBIA, JANUARY, 1833. H 
 
 7. It is objected, also, that Ferdinand Hopkins, Jr., the sou of Mrs. 
 Terry, and one of the defendants, is not charged with $400 18|, received 
 by him on account of the crops of 1816 and 'IT. 
 
 He was of full aprc, it appears from the Commissioner's Report, wdieu 
 he received $260, part of the amount, and the principal objection, on his 
 part, to his liability to account, appears to have been that the plaintiff 
 had uot in his bill prayed au account against him. That is true, but in 
 his answer, this defendant prays an account from the complainant, of the 
 administration of the estate of G. W. Hopkins, by his mother, the com- 
 plainant's intestate ; and this charge, if it be allowed, is pro tanto, a 
 legitimate set off against that demand, and is a matter directly put iu 
 issue by his own answer. He is, therefore, bound to render the account. 
 His infancy, when he received a part of the sum, is doubtless a protection 
 as to that, but we will not anticipate that he will, or that he should, 
 avail himself of it. In order, therefore, that all the facts may appear, 
 we have concluded to refer it back to the Commissioner to examine and 
 report freely upon the subject, and it is so ordered. 
 
 This view of the case covers, I believe, all the questions *which ^^^ 
 have beeu raised by the motion on the part of tlie complainant, ^ 
 and embraces, also, all the grounds which have 'been specified by the 
 defendant. And it is ordered and decreed that the decree of the Circuit 
 Court be reformed according to the priucii)les of this decree ; and that 
 the Commissioner do state the accounts between the parties conformably 
 thereto. 
 
 Martin, J., {siltinfj for Harper, J.,) concurred. 
 
 O'Xeall, J. having been of counsel for the defendant, gave no 
 opinion. 
 
 Eaves, for the plaintiff. 
 WJllmms, contra. 
 
 Wm. Newman and Wife, vs. Peter II. Wilbourne, Exr, and Carey 
 WiLBouuNE, Exr'x, aud others, Legatees of William Wilbourne, 
 deceased. 
 
 Tlic doetrinc of advancements applies solely to cases of intestacy. [*11] 
 
 One legatee cannot compel another to account for a debt due to the estate, none but 
 the executor has that right.((/.)[12] 
 
 >Vhere the testator had loaned negroes to his son-in-law : which he afterwards per- 
 mitted him to sell, and to apply the proceeds to his debts; the amount for whicti 
 they were sold will be regarded as a loan without interest, until payment was 
 demanded. [*l:i] . 
 
 An executrix who has no interest, is a competent witness to prove a debt, where it 
 is properly before a Court of E.|uity ; but if the debt is recoverable m an action 
 at law, in which she must be the plaintiff, this Court will not permit her to be 
 examined, but will send the parties to a Court of Law to establish the debt.i_ loj 
 
 Where delivery of possession is relied on, as evidenee of a gift, the subsequent dec- 
 larations of the donor, will not be competent to vary the legal consequences. [ idj 
 
 The facts necessary to a correct understanding of the points made and 
 
 (a) Farley v. Farley, 1 M'C. Ch. Rep. 506 ; Screven v. Bostick, 2 lb. 417.
 
 12 SOUTH EQUITY CABOUXA REPORTS. [*10 
 
 decided! -r. are so ' "~ - - ^. '■ -'-^^ foIlowiDg decree of thU 
 Coart. a- ^J ft"" -arr. 
 
 CrKiA. ^ - .- O JN EAii. J. i. T.i oy >' nd his wife, 
 
 Cwho was '?!;■? ':*f the ohil'iren a: ^ of the asuinst the 
 
 executor 
 
 le- 
 
 nient of ■ ^^^ 
 
 not pan - were i- -ij 
 
 William '• - . ;" ^^^^ u: . . - > 
 
 charge, that ihe said Wiiiiam Webb receired from the said ^^ :^l. 
 Tt' — - - -hort time before his dev- -"--^ negroes, to wii : T^^i^i^ud 
 but whether the Si s were sold bj the said 
 
 e to the said W :...^... Webb, or intended as an 
 
 - son-in-law. thev are not sufficiently informed on the 
 
 ■ - ..11 
 
 ere 
 
 mad er, 
 
 ren, 
 
 . - : the 
 r.ns that 
 
 . '>^.<:a "-.aa;_'-:; -J, _'.... n.'S'-i': ■jj wuV <_. . laent, tO 
 
 i: - ■ • : of the 
 
 e«ta- ifanj) 
 
 ^ 'nae. 
 
 :or 
 
 -on 
 
 any 
 
 .. in his 
 
 . ..:. ... i'.i J aeainst 
 
 •le np to June Term, 
 
 - on a review of the 
 
 . and that the Com- 
 
 -eport to 
 
 and at 
 
 hen 
 
 iCt- 
 
 on 
 
 it has been, OTer and 
 
 r:; .;. ;i •" - — ' ' '"^taCT, a 
 
 :nt for i to him, 
 
 L.- - ' iCT. and 
 
 ♦JO- -.- was a 
 
 X ;o iucconnt for 
 
 adv., 
 
 I -^iitT; .0 luc cvidcaoc cuiiiaiiicd iii Cuaiiceuor DeSaossure's
 
 *12] COLUMBIA, JANUARY, 1833. 13 
 
 decree, with a view of ascertaining how the fact really was. whether Tish 
 and her children were or were not, an advancement ; and I think it is 
 impossible to say from it, whether they were given or loaned. They 
 went into Webb's possession after his marriage, and were sold to pay his 
 debt, by the consent of the testator, who executed a bill of sale for them. 
 If the bill had alleged that they went into his possession as a loan, and 
 this had been the issae between them, I should have been contented to 
 resolve my doubts by the Chancellor's decision. It is, however, alleged 
 in the bill, that they went into his possession as an advancement, or by a 
 sale. There is no pretence that they were sold to Webb. It is now 
 alleged that they were sold by the testator, to pay Webb's debt, and that 
 he is therefore indebted to the testator in the amount of their price, for 
 80 much money paid, laid out and expended at his request. This may, 
 for aught I know, be the truth of the case ; but there is no charge in the 
 bill authorizing such a demand to be set up. If there had been, I know 
 of no right which one legatee has to call upon another to account for and 
 pay a debt to the estate. Generally the executors at law have an ample 
 remedy for the collection of their testators' credits ; in some cases of 
 bills, either by or against them, for a final settlement, they might be 
 allowed to set up and claim from a legatee, an account for debts which 
 he owed to them as executors, or to their testator, in his lifetime. But 
 to return to the merits of the charge against Webb. The decree assumes 
 that the negroes were loaned to Webb ; if so. it was a loan without hire. 
 When was it to terminate ? — at the testator's death, or at the time his 
 estate was to be divided, or upon demand ? If the loan of the negroes 
 was without hire, must not the amount for which they were sold stand 
 upon the same footing as a loan without interest, until payment was 
 demanded ? This, I think, must be the result, unless there was some 
 contract varying the legal effect of the sale of the goods loaned — none 
 appears to have been proved ; and *yet the Commissioner has r^y^ 
 charged interest from the 24th of February, 1828. It may be ^ 
 that payment was demanded, but I can discover no evidence of a de- 
 mand, until the bill was filed in March. 1831. 
 
 The evidence of the executrix, Mrs. Carey Wilbourne. was competent 
 to prove the debt, due by Webb, if it had been properly before the Court 
 of Equity : for she has no interest in the residuary estate, of which it 
 would be a part. But the fact, that she may be sworn here, is, perhaps, 
 a strong reason why this Court should not assume cognizance of this part 
 of the case, until the debt is established at law For there she must be 
 a plaintiff, and could not then be examined, as a witness. To permit the 
 ease to be taken from the Law Court, and brought into Equity, and then 
 to make competent, a witness not competant at law. might constitute a 
 danfjerous precedent. 
 
 As to the declarations of Mr. Wilbourne, that he had not given the 
 negroes to Webb, that he had only loaned them, or that Webb was to 
 pay, or account for them, thev were incompetent evidence. In the case 
 of 'Sims V. Saunders, State Rep. 374, Judge Xott states the rule. He 
 says, " as a general rule of law, a person who has made a gift, or done any 
 other act, cannot be permitted to impeach it. by his after declarations. 
 If, therefore, the gift in this case had been proved, the declarations of the 
 donor ought to have been rejected; but the proof was imperfect, and
 
 *14] 
 
 14 SOUTH CAEOLINA EQUITY REPORTS. [*13 
 
 inconclusive. If the plaintiff had relied alone on the evidence of the gift 
 and delivery, without resorting to subsequent declarations on her part, 
 the defendant could not have been permitted to give such evidence." As 
 I understand this case, the defendants relied on the fact of a delivery of 
 the possession, as evidence of a gift ; and if so, no subsequent declara- 
 tions of the testator, could be competent to vary the legal consequences. 
 From every view of the case, I am not satisfied to affirm the decree as 
 it stands ; it may be that it is right, but I cannot satisfy myself that it is 
 so, from the lights which have been afforded. I think the executor and 
 executrix ought to recover the debt at law, and then account to the com- 
 plainants and the defendants, Webb and wife, for their shares in this case, 
 in this Court. 
 
 *It is, therefore, ordered and decreed, that so much of the Chan* 
 cellor's decree, as makes the defendant, Webb, liable for the debt of 
 $150, with the interest thereon, be reversed, and that the executor and 
 executrix do forthwith proceed at law, to sue for, and recover the same, 
 (if it can be done) — that until the final decision of the same at law, 
 and the further order of this Court, they be permitted to retain, in their 
 hands, the share of the estate of William Wilbourne deceased, to which 
 William Webb and wife are entitled ; and if, upon the trial at law, they 
 should recover the said debt, then, that they do deduct, from the said 
 recovery, the said shares with the interest which shall accrue in the mean 
 time ; but if they should fail to recover the same, then that the defendants, 
 Webb and wife, have leave in this case, to move the Circuit Court of 
 Equity, for a decree against the executor and executrix, for the said 
 share and interest. 
 
 Johnson, J. concurred. 
 
 Harper, J. absent. 
 
 Po2:)e, for the Plaintiff, 
 
 Bauslcet & Wallace, for the defendants. 
 
 John M. Maxwell, Administrator of Charles Maxwell, deceased, v. 
 
 Francis Connor. 
 
 Where the payee of a promissory note, by contract with the principal maker 
 extends the time of payment, without the consent of the surety, the latter is dis- 
 charged, and he may avail himself of this defence, in a Court of Law ; but having 
 failed to do so, he cannot afterwards obtain relief in Equity. [*15] 
 
 On the nth of March, 1820, Charles Maxwell, the plaintiff's intestate, 
 executed a-promissory note, as one of the securities of John M. Daven- 
 port, to Ambrose Edwards or bearer, for $500, due at twelve months. 
 On the 31st day of July, 1826, the note being unpaid, Edwards procured 
 Davenport to execute to him a mortgage of a tract of land, to secure its 
 payment; and by covenants in the mortgage, without the knowledge or 
 -J,, r-| consent of Maxwell, the surety, varied the terms *of the note, by 
 -^ extending the time of payment to the 1st day of January 1829.
 
 *15] COLUMBIA, JANUARY, 1833. 15 
 
 Edwards afterwards transferred the note to the defendant, Connor, who 
 was a witness to the mortgage, and he instituted suit, on it, ap-ainst 
 Maxwell, in the Court of Common Pleas, in February, 1829. On the 
 trial of this action, in October, 1830, Ma,xwell, for his defence, relied on 
 the ground, that the payee, Edwards, had, without his knowledge or con- 
 sent, by the covenants of the mortgage, varied the term of the note, and 
 that consequently he was released from his liability. The Court over- 
 ruled the defence, on the ground that it could only avail in Equity, and 
 not at Law. A verdict was accordingly rendered against Maxwell, from 
 which no appeal was taken, and judgment was signed, and execution 
 lodged. He thereupon filed his bill, setting forth these facts, and pray- 
 ing a perpetual injunction against the proceedings at law. Before the 
 case came to a hearing, Charles Maxwell died, intestate, and the present 
 plaintiff, his administrator, filed a bill of revivor. The cause was heard 
 at Abbeville, at June Term, 1832, and the following decree pronounced. 
 
 Johnston, Chancellor. I shall not touch on the defendant's evidence, 
 but shall decide the case stated and made out by the plaintiff. 
 
 The plaintiff states his case, in the bill. His claim to relief, is, that 
 his intestate was discharged by a contract extending time to his principal, 
 without his intestate's concurrence. He does not ask this Court to 
 deliver up the paper securities to him, but simply insists that his intestate 
 was discharged and released. All he asks, is, that this Court should 
 declare him discharged. 
 
 He states at the same time, that a judgment has been obtained, at law, 
 on the contract, against intestate ; which judgment must of course, 
 impliedly assert that he was not discharged from, but bound by, the 
 contract. 
 
 The plaintiff, so far from coming here upon the ground of testimony 
 discovered since the trial at law, states in his bill, that his intestate had 
 the evidence then, which he has now, to prove his discharge, and actually 
 tendered it to the Court. He has, in fact, offered no testimony here, 
 which has arisen since the trial at law. There is no pretence in the bill, 
 or suggestion* in the evidence offered here, that there was any r^-,(> 
 lack of testimony at the law trial, or that any has been discovered ^ 
 since. 
 
 This is the plaintiff's case. 
 
 There is no question in my mind, that the extension of credit, by the 
 payee, to the principal maker of the note, is a good discharge of the 
 surety, if made without his concurrence, and under a valid contract, 
 which ties up the hands of the payee. Mere indulgence will not dis- 
 charge him : mere refusal to sue, will not discharge him Although there 
 are cases to the latter effect. But an obligatory contract to extend time, 
 will ; because it is in fact, a new contract, substituting new terms for the 
 old, and therefore discharging the old contract, and whatever discharges 
 the old contract, discharges the parties to it. At all events, if the old 
 contract cannot be enforced against one, it cannot be enforced against 
 any of the parties to it, when all are equally bound. 
 
 But a very material inquiry, is, whether the discharge was not as 
 available a defence at law, as it is here. The plaintiff only asks to be dis- 
 charged, and the question is, whether the Court of law was not as compe- 
 tent to grant him that relief, as this Court. And then follows the question,
 
 16 SOUTH CAROLINA EQUITY REPORTS. [*16 
 
 whether, if the defence was available at law, the plaintiff can be heard 
 here when he states that he has just come out of a trial, of the same case, 
 in a competent tribunal. Shall he have two trials ? 
 
 I think it has never been doubted, either by law or equity Judges, when 
 the question has been suggested, but that when the fact of surety-ship 
 can be reached at law, a Law Court is bound as much as a Court of 
 Equity to rule that an extension of time, such as is set up in this case, is 
 a full "discharge to the surety : or, that when nothing is asked, but to be 
 declared discharged, a Law Court is as competent to grant that relief, as 
 a Court of Equity. The principle of discharge is, in its nature, a legal 
 principle. 
 
 It is difficult to conceive why a discharge should not be a discharge, 
 wherever presented ; whether in law or equity — there can be no difference 
 in the two Courts on principle, whatever there may be in the mode of 
 ascertaining the facts and administering some of the remedies. 
 ^-.H-] *I will look to the question, and see how it stands on authority. 
 -I One or two authorities in this Court, will suffice to show, that this 
 Court never arrogated exclusive jurisdiction of the question, whether a 
 surety was, or was not discharged : but has always admitted that the 
 Courts of law have concurrent jurisdiction, when they can ascertain the 
 facts. 
 
 In Rees and Berriugton, (2 Ves. 540,) where the form of paper security 
 was that of a joint and several bond, for the payment of money, Lord 
 Loughborough says, "the form of the security, forces these cases into 
 Equity. But take it out of that form ; and suppose in this instance, that 
 the plaintiff was a surety by a proper bond at law as surety. What is 
 the consequence ? Where a man is surety at law, for the debt of another, 
 payable at a given day, if the obligee defeats the condition of the bond, 
 he discharges the security. When they are bound jointly and severally, 
 the surety cannot aver, by pleading, that he is bound as surety. But if 
 he could establish that at law, the principal at law is, that he has an 
 interest in the condition, and if the period is extended, that totally 
 defeats the condition ; and the consequence is, the surety is released from 
 his engagement." He adds, "the principle is a legal 2}f'inciple." 
 
 When he says " Suppose the plaintiff' was a surety by a proper bond 
 at law, as surety," I understand him to refer to a bond of such form, 
 as, on its face, would have shown the plaintiff to have been a party, as 
 surety only. 
 
 In King v. Baldwin, (2 John. Ch. Rep. 55*7,) Chancellor Kent says, 
 "he, (King,) has made his defence, to a recovery on the note, before a 
 Court of comjyetent Jurisdiction, upon the same fact, that he now puts 
 forward, and that defence was overruled — it was observed by the present 
 Chief Justice, in delivering the opinion of the Supreme Court, in the 
 case of The People v. Jansen, (7 Johnson's Reports, 332,) that there 
 was nothing in the nature of a defence by a surety, to make it peculiarly 
 a subject of Equity jurisdiction, and that whatever would exonerate the 
 surety, in one Court, ought also in the other. The fact being ascertained, 
 he observed, the rule must be the same, in that Court, as in the Court of 
 5,5-^g-j Chancery. And this was, undoubtedly, the opinion* of Lord 
 Loughborough, in the case to which the Chief Justice refers." 
 
 In the same case. Chancellor Kent also refers to two law authorities
 
 *18] COLUMBIA, JANUARY, 1833. 17 
 
 10 East, 34, and 1 Bos. & Pul. 419 for the purpose of drawing from 
 them the rule, as to what shall amount to a discharge ; and squaring his 
 decision in Equity, by the law rule. Surely he would not have done this, 
 if he had not admitted that the subject was one of law cognizance — and 
 that the rule was the same in both Courts. 
 
 In our own Courts of Equity, in no case, has such a question been 
 raised, so that no opinion can be gathered from our own Reporters — but 
 unquestionably higher authority than that I have quoted, is not required, 
 when the question is, as it is, open in our own Courts. 
 
 We have seen the opinions of Equity Judges — let us now turn to those 
 of Law Judges. The authorities are abundant, and the practice of law 
 Courts has been never to turn away, but always to take jurisdiction of the 
 question, whether a surety has been discharged by extension of time, or 
 variation of the contract with his principal. 
 
 Nothing is more familiar than the successful defence of acceptors and 
 indorsers, on that ground, of whom Lord Ellenborough in Laseter v. 
 Peat, 2 Camp. 185, says "they stand as surety, and sureties to single 
 contracts, and are discharged by extending time to their principals, with- 
 out their concurrence." 
 
 It is vain to say, that the defence of discharge to indorsers and 
 acceptors, stands upon the principles of commercial law, difTerently from 
 other cases. That may be — but the question now before us, is not 
 aflected by it. The question is not whether indorsers and acceptors may 
 not be discharged by less laches, or extension of time, than other sureties: 
 but the question is, whether a discharge may not be relied on, in a Court 
 of law, by a surety, as well as in this Court. 
 
 But there is abundant authority in law Reports, to show that whatever 
 be the nature of the security whether bond, note, or any thing else ; if the 
 fact of suretyship can be ascertained at law, laches amounting to a fraud 
 on the surety, or extension of time, by valid contract to the. principal, 
 without his assent, is a good legal defence for the surety. 
 
 *In Peel v. Tatlock, 1 Bos. & Pul. 419, the question was, r>i;in 
 whether a fraudulent concealment, by the obligee of a bond, of con- ^ 
 duct on the part of the principal which it was essential to the surety's 
 interest that he should have been apprized of, was a discharge, at law, of 
 the surety, and the Court was prevented from holding the affirmative, 
 only because the fact of such concealment was not established. 
 
 In this case, the bond was for the faithful performance of the principal, 
 as cashier to a banking house. 
 
 In the Trent Navigation Company v. Harley, 10 East. 33, and see 7 
 John. Rep. 338 ; 13 lb. 115, where the defendant was surety to a bond, 
 for the conduct of the company's cashier, the question was, whether the 
 laches of the company, in not calling on the cashier, so soon as they might 
 have done, if the account had been properly examined, from time to time, 
 was an estoppel at law, as against the surety. Lord Ellenborough said, 
 he knew of no such estoppel, at law, whatever remedy there might be in 
 equity. 
 
 It is evident, his Lordship's difficulty was not, whether a discharge was 
 
 not as good a defence in law, as in equity ; but whether that miglit not 
 
 amount to a discharge, in equity, which was not sufficient at law. His 
 
 suggestion has no foundation, either in principle or authority. The case 
 
 YoL. L— 2
 
 18 SOUTH CAROLINA EQUITY REPORTS. [*19 
 
 was one of mere indulgence, which is no more a discharge in equity, than 
 in law. 
 
 This case, whilst it establishes no distinction between the two Courts, 
 as to what shall amount to a discharge, shows that the fact of being dis- 
 charged, is a legal defence, not questioned as such, and of daily occur- 
 rence. 
 
 In The People v. Jansen, 1 John. Rep. 332, already referred to, the 
 suit was on a bond, given for the conduct of the principal obligor, as loan 
 officer of a county in New York : and the question was, whether the 
 defendants, who repi'csented one of the sureties, were not discharged by 
 the laches of the supervisors of the county, to prosecute the principal for 
 defaults, as, by acts of Assembly, they were required to do. 
 Thompson J., in delivering the opinioa of the Court, says, 
 "The first question is, whether the defendants can, in a Court of law, 
 ^g, -| avail themselves of these facts, in their defence." *Here we see the 
 -■ very question, we are now discussing, stated. "I am," he resumes, 
 "unable to discover any good reason for sending the defendants into a 
 Court of Chancery for relief. There is nothing in the nature of the 
 defence, to make it peculiarly a subject of equity jurisdiction : that the 
 ancestor of the defendants was a surety only, appears upon the face of 
 the bond; and whatever would exonorate the surety, in one Court, ought 
 also, in the other. The facts being ascertained, the rule of law must be 
 the same in this Court, as in the Court of Chancery. And this seems to 
 be the light in which the subject was viewed, in the case of liees i\ Ber- 
 rington, 2 Ves. Jun. 542. The doctrine of this case, clearly is, that 
 whether a surety has been discharged, or not, is a legal princi})le, and 
 that if the form of the security, and mode of proceeding at law, would 
 authorize an enquiry into the fact, whether security or not, the defence 
 would be the same at law, as in equity. Lord Loughborough says, it is 
 the form of the security, which forces these cases into equity. For when 
 the principal and security are bound jointly and severally, the security 
 cannot aver, by pleading, that he is bound as surety : but if he could 
 estabhsh that at law, the rule or principle, by which his liability is to be 
 determined, is a legal principle." 
 
 It would be very extraordinary, if a Laiu Court should be inhibited, 
 while a Court of Equity should be exclusively entrusted, with the appli- 
 cation of a legal princiiDle : when the Court is asked to do nothing more 
 than barely apply it. 
 
 In Paine v. Packard, 13 John. R. lU, the defendant pleaded spe- 
 cially, that he signed the note, on which he was sued, as surety for one 
 Manson, that whilst Manson was solvent, he urged the plaintitf to pro- 
 ceed against him, but that he neglected to do so, until Manson became 
 insolvent and absconded ; on demurrer the plea was held good. 
 
 I do not uphold this decision, so far as it asserts that the mere indul- 
 gence of Paine, in defiance of Packard's remonstrances, discharged Pack- 
 ard. But it is good to show that, "whether a surety has been discharged 
 or not, is a legal principle;" and that the rule is the same in law, as in 
 equity. 
 
 Indeed, it is not conceivable how there can be any difference, if, as 
 
 *21'1 ^^'^^^' ^^- J-> s^ys : "the defence which may be set up [*at law,] 
 
 -J of time given to the principal, is borrowed from the Court of
 
 ^21] 
 
 COLUMBIA, JANUAEY, 1833. 19 
 
 Equity." It must be the same in the Court borrowing it, as in that 
 whence it was borrowed I rather incline, however, to think that it is a 
 defence standing on a legal principle, and that the borrowing was by this 
 Court. 
 
 Come whence it may, it is now common to both Courts. 
 
 I shall stop here. All these cases, both law and equity, establish tliat 
 Maxwell's was a good defence at law. 
 
 The only difficulty which ever forced such cases into equity, was that 
 of arriving, in a law Court, at the fact of suretyship. Whenever that 
 could be established, the law Courts took cognizance of the defence. 
 
 In Peel v. Tatlock, Trent. N. Comp'y, v. Harly ; and People v. 
 Jansen ; the fact of suretyship appeared on the face of the bonds, whicli 
 showed for whose conduct the undertaking was, and the Court of law 
 accordingly took cognizance of the defence. 
 
 In Paine v. Packard, the fact was admitted by the demurrer, and the 
 defence prevailed. 
 
 In the case at bar, the fact of suretyship appears by the character in 
 which Maxwell subscribed the note. He subscribed as surety, and the 
 note could never be produced against him, wdthout that coming along 
 with it, to show he w^as surety only. It is the very form of subscription 
 which in the case of Fulton v. Matthews, 1.5 John. R. 433, was con- 
 sidered satisfactory proof that Matthews was only surety for Wedge, he 
 subscribed " Tho. Matthews, security." 
 
 I have been more* solicitous to prove that the rule, as to a surety's 
 being discharged, was the same in law or equity, and that whatever was 
 a discharge in one Court, was, also, in the other ; than to establish that 
 the defence, set up by Maxwell, was good in either Court, although the 
 cases show conclusively that it was good in both. 
 
 I have been less anxious on this latter point, because if the rule be the 
 same in both Courts, it is perfectly immaterial whether the defence Avas 
 good or bad. If good, it has been before a competent tribunal ; if bad, 
 the plaintiff is not entitled to relief here. 
 
 If the Court of law was competent to hear and determine *the defence, 
 if it had concurrent jurisdiction with this Court of the subject p^.-j^ 
 matter, a» I think I have shown, then the plaintiff states in his bill L 
 he has been before a competent tribunal : and by that statement has 
 barred himself on the face of his own pleadings from relief here. The 
 defendant is under no necessity to plead that which the bill states and 
 pleads for him. The office of defensive pleas is not to argue or assert 
 points of law, but to aver facts, from which the legal inferences follow — 
 but the legal inference is the same, from the same fact, from whatever side 
 the fact comes out. 
 
 If a defendant has been before a competent tribunal which has pro- 
 ceeded io jxidcjment, that decision, until 7'eversed, is conclusive upon him 
 in every tribunal having concurrent or other jurisdiction. It is conclu- 
 sive upon him as to every matter of defence, not only presented, but 
 which could have been presented by him ; and it is conclusive upon him, 
 although the judgment be erroneous, if he acquiesce in it, and does not 
 proceed to reverse it. It is conclusive on him, because a party, whenever 
 he is brought into a Court, is bound to full diligence, which if he uses, 
 he will obtain his right. If he neglects, either in putting in proper pleas
 
 *23] 
 
 20 SOUTH CAROLINA EQUITY REPORTS. [*22 
 
 or introducinp: all his evidence to support them, he has no one to blame 
 but himself; nor will his neglect in one Court be allowed to give him a 
 right to a second trial, either in that Court or another. If the tribunal 
 before which he is, commits errors in deciding, his appeal is not to a 
 Court of merely concurrent, and not appellate jurisdiction, but by that 
 tribunal which is by the constitution provided exclusively and expressly, 
 for the correction of errors ; and if he neglects to prosecute an appeal, 
 he must bear the consequences. 
 
 It is surely a hard case, if a party entitled to a relief in both Courts, 
 (I do not say this plaintiff is, because I do not go into an examination 
 of the evidence against him,) but it is a hard case, if a party entitled to 
 relief in both Courts is repelled from both, and is relieved in neither. 
 But the wholesome rules of' law cannot, for that reason, be broken down. 
 In that case, ten would suffer for the one relieved. 
 
 1 Camp N. P. 249, 200, 557 ; 1 Chitty, 417. I think the defence 
 offered was receivable at law, under the general issue ; but if that plea 
 would not have covered it, it *was Maxwell's business, (being at 
 liberty), to put in a special plea that would ; and I also conceive 
 that the defence, being improperly rejected, he ought to have carried the 
 case up by appeal ; where, if I am right, he would certainly have suc- 
 ceeded in correcting the error. 
 
 It has been said in argument, that because this Court possesses con- 
 current jurisdiction of the defence presented at law, which defence was 
 not effectually made there, this Court may take it up*. One plain answer 
 is, that the pleas still stand on the law record, and that the judgment is 
 a defeat of the facts pleaded ; in which must be included every fact 
 which could have been proved under the pleas. The judgment at law, 
 then, is the judgment of that Court having competent authority to render 
 it ; that Maxwell was not discharged. This Court has no right to 
 reverse that judgment ; if it should reverse it, we would have two oppo- 
 site judgments of equal authority and obligation, being judgments of 
 Courts of co-equal and concurrent jnri>diction, both upon the same 
 subject matter. 
 
 Another answer is, that if Maxvrell had not put in the pleas at all, 
 and had not pretended to defend himself at law, he could not be heard 
 here. He had his remedy there, and the same remedy which is now 
 asked here. A Court of Appeals, common to both Courts, rendered it 
 certain that the rules of law, applicable to his defence, were the same in 
 both Courts. No reason could therefore be offered, why he should have 
 neglected his defence at law and come into this Court, except a mere 
 speculation as to the probability of obtaining a more favorable decision 
 on the facts founded -on the different tempers of mind and modes of 
 thinking, of the persons constituting the two Courts. But the corrupt- 
 ing effect of this, if allowed, every one must see — of course the case put 
 is hypothetical. 
 
 It was said, however, that Maxwell committed no fault, and that inas- 
 much as the decision at law was erroneous in law, this Court should 
 relieve the hardship by exercising its concurrent jurisdiction. 
 *241 •^^^^ ^^® answer is, first, he teas in fault for not appealing. 
 
 ^ Secondly, this Court, for want of appellate jurisdiction, *has no
 
 *24] COLUxMBiA, JANUARY, 1833. 21 
 
 authority to reverse the law decisiou, or pronounce whether it was or 
 was not, erroneous, with a view to sustain or overrule it. 
 
 Again, the declaration of the law Court, that this Court possessed 
 exclusive cognizance of the defence, could not make it so ; it could 
 neither take away its own jurisdiction nor alter the relative position in 
 which this Court stands to that, which as to the subject matter, is that of 
 a Court of concurrent jurisdiction, bound by comity to respect the 
 decision of the other Court which first took hold of the case. 
 
 Again: as a Court of concurrent jurisdiction, this Court possesses no 
 more power to relieve from hardships growing out of erroneous decisions 
 of that Court, on a matter within its jurisdiction, than that Court, sitting 
 at a subsequent time, possesses. (7 T. Rep. 692; 8 lb. 436; 1 John. 
 Ch. Hep. 91, 543; Johnson's Cases, 433.) Now, if the plaintiff, in 
 place of filing this bill, had at March Term, 1831, come into the same 
 law Court, before the same Judge who excluded the evidence at October 
 Term, 1830, and satisfied him by an ample examination of authorities, 
 that the defence was a good one at law, and ought to have been received, 
 could he have vacated the judgment and ordered a new trial ? Not 
 without usurping the province assigned by the Constitution to the Appeal 
 Court. 
 
 But I am arguing a point as well settled as any in the whole circle of 
 the law. — Look to the authorities, and they will show this. 
 
 From this decree the plaintiff appealed, on the grounds : 
 
 1. That the Chancellor should have entertained the bill, as the matters 
 set forth in it were of equitable cognizance : and he erred in ruling that 
 the defence at law was available there, when the contrary had been held 
 by the Court of law. 
 
 2. That the plaintiff, suing in his representative capacity, on a demand 
 of his intestate, is not liable for the costs, either personally or out of the 
 estate. 
 
 Noble, for the plaintiff, cited and commented on TVayne v. Kirby, 
 December Term, 1831 ; Sherbrook v. Russell, *1 Eq. Rep. p^g^ 
 315 ; Executor's of Green v. Warren's Executors, 1 Eq. Rep. ^ 
 430 ; Butler v. Hammond, 2 Eq. Rep, 226 ; Kennedy v. Gibbs, lb. 
 389, 3 Eq. Rep. 596 ; Hampton v. Levy, 1 M'C. Ch. 145 ; Golphin 
 V. M'Kinney & Briethaupt, lb. 280 ; Smith u. Tunno, lb, 443 ; Rees 
 V. Barrington, 2 Yes., Jr., 540, 
 
 Burt, for the defendant. 
 
 Curia, per Johnson, J, The mortgage of July, 1826, and the cove- 
 nants therein contained, vary essentially the legal effect of the note of 
 March, 1820. According to the note, the sum contained in it was due 
 and payable twelve months after the date, (March, 1821). By the cove- 
 nants contained in the mortgage, the payment is postponed until Janu- 
 ary, 1829. Thus varied, it is not the same contract by which the com- 
 plainant's intestate was bound. But the Court concur entirely with the 
 Chancellor, for the very satisfactory reasons he has advanced, thatthis 
 defence was available at law— that" his only remedy for the error of the 
 Circuit Law Court in overruling the defence, was by appeal, and having 
 neglected to pursue that course,"he is not entitled to relief in Equity.
 
 22 SOUTH CAROLINA EQUITY REPORTS. [*25 
 
 The Chancellor has made no special order on the subject of costs. 
 The question propounded in the second ground of the complainant is 
 not, therefore, before the Court, and cannot properly arise, except upon 
 motion to tax costs before the Commissioner. 
 
 Motion dismissed. 
 
 O'x^'eall, J., concurred. 
 
 Mary Miller, Administratrix de bonis non of Archibald Miller, 
 deceased, v. A. G. & E. 0. Alexander, Executors of Harmon 
 Alexander, deceased. 
 
 In order that the parties should be bound by the decree of the Ordinary on matters 
 of account, it should appear by the proceedings, that thej- were legally before him, 
 either by citation duly served, or ai^pearance by consent, set out on the face of 
 the decree. [■^27] 
 
 AVhere an administrator, in the course of his administration, on a sale of his intes- 
 tate's property, took a note payable to himself as such, and dies ; and adminis- 
 tration dc bonis non is granted, altliough the legal right to the note is in the first 
 administrator, yet the equitable right is in the administrator dc bonis non; and if, 
 on a final settlement of accounts, the amount of the note appears to be due from 
 the estate of the first administrator, the administrator de bonis non will be entitled 
 to the possession of the note.[*29] 
 
 Curia, per O'Neall, J. The unfortunate destruction of the Circuit 
 ^()a-\ clecree by fire, has created some embarrassment to *this Court, in 
 -I ascertaining both the facts of the case and the grounds on which 
 the decree was predicated. It is, on this account, necessary that a 
 summary of the facts which we regard to be important, should be made, 
 in order that the opinion to be expressed may be fully understood. 
 
 It appears that Archibald Miller died intestate, leaving no issue but a 
 father or mother, one brother and three sisters, his only heirs and next of 
 kin him surviving. The defendants' testator administered and sold his 
 personal estate : at that sale Sarah JNIiller and the complainant, who 
 were two sisters, and heirs of the intestate, purchased to the amount of 
 five hundred dollan's, and for the payment of this sum gave their note, 
 under seal, to the defendants' testator. Upon some occasion, and with 
 a view to settle with a part of the distributees, the defendants' testator, 
 and the complainant, went before the Ordinary of York District, and he 
 made a statement of the accounts of the administrator, in which he 
 omitted to charge the defendants' testator with the interest actually paid 
 or due on notes, including the one now in dispute, which he held an 
 account of, and as assets of the intestate's estate. — By this statement he 
 ascertained the share of each distributee, and decreed it to be paid by the 
 administrator. This statement of the accounts and decree was, however, 
 entirely ex parte ; no citation was issued, and none of the distributees, 
 except Mary Miller, were present. Under it, however, some of them 
 gave receipts for the sums at which their shares were erroneously stated 
 by the Ordinary. Soon after this transaction, Harmon Alexander died, 
 leaving a will, of which the defendants are the executors. Mary Miller,
 
 *26] COLUMBIA, JANUARY, 1833. 23 
 
 supposing herself as one of the heirs of her brother, and as agent for the 
 others, to be entitled to the note of herself and her sister, which she 
 knew to be a part of the assets of his estate, possessed herself of it. 
 The defendants filed a bill in the Court of Equity against her for a dis- 
 covery, and to compel her to restore it to them. In the meantime, she 
 took out letters of administration de bonis non, on her brother's estate. 
 And in her answer she claimed to be allowed, as administratrix de bonis 
 non, to retain it. This Court, on an appeal from the Circuit decree in 
 her favor, thought that she could not be permitted *to put the com- j-^^j^ 
 plainants to proof of their right to the note, in showing that upon a L 
 final settlement of the accounts of their testator's administration, that the 
 sum which it secured to be paid, would be due and owing to him ; but that it 
 devolved upon her to be the actor, and to prove from the accounts of the 
 testator's administration, that he was in arrear to her intestate's estate, 
 the amount of the note ; and for the purpose of carrying these views into 
 effect, decreed that she should deliver the note to (the then complainants) 
 the present defendants, unless she should within three months after notice 
 file a cross-bill for the discovery of facts necessary to her defence, and 
 prosecute the same to a final decree with all convenient dispatch. Under 
 this decree this bill was filed, and the discovery of the accounts of the 
 defendant's testator, with the estate of Archibald Miller (deceased) made, 
 and the same were referred to the Commissioner for his report. He 
 reported, "that upon a careful investigation of the whole matter, he is 
 satisfied that the whole amount of the complainant's note in dispute, with 
 the interest, and a balance of $17 23" cash, in the hands of the defend- 
 ant's testator, " is justly due the estate of Archibald Miller, deceased." 
 The case was heard at June Term, 1831, and the Chancellor (Johnston) 
 dismissed the cross-bill. During the pendency of the original and cross- 
 bills, the defendants sued at law on the note, and at Spring Term, 1832, 
 of the Court of Common Pleas, recovered judgment on the note against 
 the complainant Mary Miller, Sarah Miller and Major T. Hall, the 
 obligors. 
 
 Out of these facts arise two questions ; first, does the statement of the 
 accounts, and the decree by the Ordinary, conclude the complainant from 
 demanding in the Court of Equity an account of the administration of 
 Harmon Alexander, on the estate of Archibald Miller (deceased?) 
 Secondly, if it does not, then is she, as administratrix de bonis non, 
 entitled to receive from the defendants whatever balance their testator is 
 in arrear to his and her intestate ? 
 
 1. I entertain no doubt that the statement of the accounts and decree 
 by the Ordinary, is not conclusive between the parties. It was wholly 
 an ex 2Jarie proceeding, made up entirely at the instance of the adminis- 
 trator, to enable him to settle with his cestui que trusts. In order to be 
 conclusive, it ought to *be the judgment of the Court, between r-^^^ 
 parties regularly in Court on the same matter, then in issue 
 between them, which is at present. It would then operate as an estoppel 
 between parties and privies in estate or in law. But before it can have 
 this effect, it must appear by the proceedings had before the Ordmary, 
 that the parties to be effected by it were legally in Court. _ This can 
 only be done by a citation duly served and returned to the Ordniai-y ; or 
 by an appearance of the parties, by consent, set out and appearing on
 
 24 SOUTH CAROLINA EQUITY REPORTS. [*28 
 
 the face of the decree. — No citation was issued either to bring in the 
 administrator to account or to require the heirs to attend the settlement 
 of his accounts, no consent appears to have been given to any judicial 
 determination by the Ordinary. Mary Miller was in his office when he 
 commenced the statement, but it does not appear that she was present 
 when he wrote his decree, or that she expected him to do so. It is, 
 however, sufficient to say that from the decree it does not appear that she 
 was a party to it by consent. There can be no doubt that she expected 
 the Ordinary, as any other accountant, to ascertain her share from the 
 papers before him, leaving her at liberty to review and correct his errors. 
 None of the other heirs were present, or in any way assenting to the 
 decree, and as against their rights, it cannot be pretended that it could 
 have any operation. In the complainant's character of administratrix 
 de bonis non, she now represents the intestate, and upon her rights in 
 that character, whatever they may be, a decree made by the Ordinary 
 before the former administration ended, and therefore before she was 
 clothed with the present powers, can have no effect. The conclusiveness 
 of the decree of the Court of Ordinary when regularly made upon all 
 matters of account embraced by it, in the Court of Equity, is matter of 
 doubt. Errors apparent upon the face of it ought to be, and I should 
 think might be, corrected. If a party who has obtained a decree of the 
 Court of Ordinary, has to ask the Court of Equity to give it effect, the 
 Court will examine the accounts upon which it is based, and give relief 
 according to the right of the case. The case of M'Cullough v. Daniel, (a) 
 *29"1 ^^Po^'ted in part, in State Equity *Ilep. 255, and finally decided by 
 -' the Court of Appeals, May Term, 1828, is an illustration on this 
 position. If a decree was obtained by fraud or collusion, it might be 
 reviewed and relief granted by the Court of Equity. If it was necessary 
 for the purposes of this case, the complainant might, I think, under the 
 head of either error apparent on the face of the decree, or the fraud of 
 the administrator, have relief against it. For it is manifest on the face 
 of the decree that, the interest which ought to have been, is omitted to be 
 charged. This omission, too, was occasioned if not by the moral, at 
 least by the legal fraud of the administrator : he withheld from the Ordi- 
 nary the facts that he had received interest, and that interest was due on 
 the notes which he then had on account of the estate. But neither of 
 these views are necessary for the purposes of this case : the decree is not 
 conclusive against the complainant, inasmuch as she was not a party by 
 process or consent. It is in this point of view nothing more than a 
 statement of the accounts between the parties to which such receipts as 
 were given have reference. This, it is supposed, is a discharge to the 
 administrator. A receipt has never been supposed to have the effect of 
 a release. It is nothing more than the evidence of so much paid ; and 
 when it purports to be in full, it devolves upon the party who signs it 
 the burthen of showing error or mistake in the settlement on which it is 
 
 (a) M'Cullough v. Daniel,— This vs-as a bill to enforce a decree of the Ordinary 
 against the defendant as executor, to which he was a party by citation, and from 
 which he had not appealed. The Court ordered an account before the Commissioner, 
 without regard to the Ordinary's decree — the Commissioner made a report in favor 
 of the defendant, which was finally confirmed by the Court of Appeals, and the bill 
 dismissed.
 
 ^29] 
 
 COLUMBIA, JANUARY, 1833. 25 
 
 predicated. This has been done in this case, by showing the errors in 
 the Ordinary's statement of the accounts, and which he himself admitted 
 he had made, by the administrator's withholding the facts from iiira. 
 
 2. The complainant, as administratrix de bonis non, is entitled to all 
 the goods, chattels, and credits, of her intestate, which were not admin- 
 istered by the former administrator. This is conceded ; but it is said, all 
 of the goods, chattels and credits of the intestate, were administered by 
 Harmon Alexander, and therefore the complainant is not entitled to re- 
 cover. It is true, the administrator did, in a course of administration, 
 sell the goods and chattels, and collect and receive the credits of his in- 
 testate — these were acts of partial* administration — he thereby r^on 
 charged himself with the nett proceeds, as so much money belonging L 
 to his intestate, out of which he was first to pay debts and expenses, and 
 the balance, if any, to distribute and pay to the respective distributees. 
 It may be, and very probably is true, that he paid the debts and ex- 
 penses ; but the balance, now reported against him, was the money of his 
 intestate, still in his hands to be administered. Upon his death, his 
 legal right to retain it ceased ; and upon the grant of administration de 
 bonis non, it passed as the goods, chattels, andvcredits of the deceased, 
 unadrainistered by the administrator, Harmon Alexander, deceased, to 
 the complainant. This legal right to receive the unadministered balance 
 of money, in the hands of Harmon Alexander, or rather his executors, 
 did not make her the legal owner of the note in dispute. That, legally, 
 belonged to the administrator, to whom it was payable ; and after his 
 death, the right of action upon it passed to his executors. For it was a 
 personal contract made with the administrator, and for its amount he 
 was personally liable to his intestate's estate. His executors could de- 
 mand and enforce payment of it. At law, it could not be averred that 
 the proceeds, when collected, could, of right, belong to the obligors, or 
 one of them. For, over the accounts of the administrator, or his con- 
 sequent liability to the distributees, that Court has no jurisdiction. It 
 merely looks to the legal rights, and not to any equities which may exist. 
 This is the extent of the doctrine contained in the case of Seabrook ads. 
 Williams, 3 M'C. 3tl. It never was intended to be said, in that case, that 
 because an administrator de bonis non could not sue on a note given to the 
 first administrator, that, therefore, he would not be entitled to recover, in 
 Equity, any unadministered balance which migh be in the hands of the 
 first administrator. There can be, therefore, no doubt that the com- 
 plainant is entitled to recover from the defendants whatever sura their 
 testator is in arrear to the estate of Archibald Miller, deceased. Not- 
 withstanding the complainant has no legal right to her own^ and her 
 sister's note, yet in Equity she may have the amount to be paid her by 
 the defendants' set off against it; and if the sum *due her is equal p,^^ 
 to, or exceeds the amount of the note, if it was in their possession^ 
 she would have the right to have it delivered to her ; and if (as is the 
 case) it is in her possession, she would have the right to retain it. The 
 judgment at law, predicated upon it, under such circumstances, cannot 
 be allowed to be enforced. At law, the defendants are entitled to the 
 note and the judgment; but in equity, she is entitled to receive from them 
 the proceeds. She cannot, therefore, be compelled to pay, with one 
 hand, a sum which she is entitled to receive with the other. This con-
 
 26 SOUTH CAROLINA EQUITY REPORTS. [*31 
 
 elusion is in accordance with, and sustained by the former opinion of this 
 Court, in the case of the Executors of Harmon Alexander, deceased, v. 
 Mary Miller. For, in that case, the Judge (Johnson) who delivered the 
 opinion, says : 
 
 " The note or bill, the subject of this suit, being the evidence of a per- 
 sonal contract with the complainants' testator, they are doubtless entitled, 
 jjrima facie, to the possession of it ; and the foundation of the right claimed 
 by the defendant, to retain it, is, that the fund intended to be secured by 
 it, probably belongs to the estate of Archibald Miller, deceased, and that, 
 as administratrix de horn's non, she is entitled to the possession and dis- 
 position of it ; and if this be true, there can be no doubt that Equity 
 would not interpose : for, admitting that the possession of the bill would 
 entitle the complainants to. recover at law, yet, they would be bound to 
 account to her, in Equity, for it, and an order for its delivery would 
 drive the parties to that circuity of action, to prevent which is one of the 
 most useful branches of Equity jurisdiction." 
 
 It is therefore ordered and decreed, that the decree of the Chancellor 
 be reversed ; that the complainant Mary Miller as administratix de bonis 
 non of Archibald Miller deceased, be permitted to retain the note in dis- 
 pute ; that she do charge herself with the amount thereof, including prin- 
 cipal and interest, in her accounts on the estate of Archibald Miller 
 (deceased), in the Ordinary's of3Sce of York District ; that the defendants 
 Albert G. Alexander and Eli O. Alexander, executors of Harmon 
 Alexander deceased, be perpetually enjoined from enforcing the judgment 
 ^221 recovered by them at law, against Mary Miller, *Sarah Miller and 
 
 "-" Major T. Hall, on the said note; that the said defendants do, out 
 of the estate of their testator, pay to the complainant the sum of $17 23 
 reported by the Commissioner, with the interest thereon ; and that they 
 do also, out of the estate of their testator, pay the cost of the cases both 
 in Equity and at law. 
 
 Johnson, J., concurred. 
 
 Harper, J., absent. 
 
 Sogers for the plaintiff. 
 
 Williams for the defendant. 
 
 Wm. McElwee v. Geo. Sutton & Wm. Black. 
 
 Where a bill is for discovery and relief, in a case where discovery is the only ground 
 of Equity jurisdiction, it must be sworn to ; but if the bill is for discovery merely, 
 no afiidavit is necessary. [*33] 
 
 As a general rule, the plaintiff in a bill for discovery is required to pay the costs ; 
 but if he asks a discovery from the defendant before tiling the bill, who refuses it, 
 and he is compelled to come into Equity, the defendant will not be allowed 
 costs. [*34] 
 
 This was a bill for the discovery of facts, to enable the plaintiff to pro- 
 secute at law his action of trover against these defendants. It was not 
 sworn to, nor accompanied with an affidavit that the facts charged could
 
 *32] COLUMBIA, JANUARY, 1833. 27 
 
 not otherwise have been proved or obtained. The defendant, Sutton, 
 had been applied to before the filing of the bill, for a discovery of the facts 
 sought for, which he then refused to make, but which afterwards in his 
 answer he did make. The defendant Black had not been applied to for a 
 discovery, before bill filed, and in his answer he denied the facts 
 material to the plaintiff's action. 
 
 The case was heard before Chancellor Johnston, at York, June Term, 
 1831, who decreed that Sutton should pay all the costs. From this de- 
 cree an appeal was taken on the grounds : 
 
 1. That there was no affidavit to the truth of the facts charged in the 
 bill, or that the discovery could not otherwise be obtained. 
 
 2. That the defendant Sutton ought not to pay the costs of his co-de- 
 fendant, Black, but that they should be paid by the complainant. 
 
 *0']S'eall, J. The rule seems to be where a bill is filed for dis- r^oo 
 covery and relief, in a case where the discovery is the only ground L 
 of Equity jurisdiction, that the party must file with his bill, an affidavit 
 of the truth of the statements contained in it. In such a case, " the 
 affidavit must state that the deeds or writings of which the plaintiff seeks 
 a discovery, are not in the custody or power of the plaintiff, and that he 
 knows not where they are, unless they are in the hands of the defendant." 
 " But where a bill is for discovery merely," no affidavit is necessary. 
 Coop. Plead. 61. In this case the bill was filed for the discovery of facts 
 in the knowledge of the defendants alone, as ancillary to the party's 
 remedy at law, and not for any relief beyond it. In such a case no affi- 
 davit was necessary. But if it had been, the defendants could only have 
 availed themselves of the want of it by demurrer. After answering, it was 
 too late to raise tlie objection. 
 
 The general practice of the Courts of Chancery, is to require the plain- 
 tiff in a bill for discovery merely, to pay the costs. But in the case of 
 Weymouth v. Boyer, 1 Yes. Jun. 423, Mr Justice Buller sitting for the 
 Lord Chancellor, suggested a reasonable and proper exception to the 
 general rule. He said, " as to the costs, I am aware that it is the prac- 
 tice of this Court, that if a plaintiff comes for a discovery, when he has it, 
 he shall pay the costs ; but I think the rule as expressed is too general, 
 and if ever a case arises when I sit here, nnder circumstance which I 
 think a proper ground for withholding the costs, I shall put the parties 
 to reconsider the question. By a proper case, I mean this — if the plain- 
 tiff is entitled to the discovery, and goes first to the defendant to ask for 
 the accounts he has in justice a right to ; if the defendant refuses, and the 
 plaintiff is thereby compelled to come here for the discovery, I would not 
 give the defendant costs. If, on the other hand, the plaintiff thinks fit to 
 file his bill without trying first to get the discovery in that way in which 
 men acting with each other ought first to ask their rights, 1 think he 
 ought to pay the costs." This exception, reasonable as it appears to be, 
 has not received the settled sanction of the English Court of Chancery ; 
 for Cooper in his treatise on Equity pleading, 61, speaks of the exception 
 as a mere dictum. *In this State, I know no case in which any rule p^^^ 
 has been settled by the Court of Appeals, as to the costs of a bill L 
 of discovery. Costs in the Court of Equity are generally regarded as so 
 much a matter of discretion, that it is rarely the Circuit decision is 
 disturbed. In the case of Whitney & Parsons u. R. T. & John S. Cates,
 
 28 SOUTH CAROLINA EQUITY REPORTS. [*34 
 
 Chancellor Thompson, on its appearing that the defendants had refused 
 to make any discovery before the liill was filed, and when their answer ad- 
 mitted all the allegations of the bill charging a gross fraud, gave the 
 complainants their costs. That was, however, an extraordinary case, and 
 ought not perhaps to constitute a precedent for a departure from the 
 general rule. 
 
 I am, however, prepared to adopt the exception of Mr. Justice Buller. 
 For it is an outrage upon justice, to say that he who compels another to 
 come into this Court, should saddle him with his costs. On the other hand, 
 it is perhaps wise not to afford encouragement to bills for discovery merely, 
 by giving costs to the plaintiff. It might be the means, were the rule 
 otherwise than it is, to bring many needless bills of this kind into the 
 Court. As I have before said, costs are generally within the discretion 
 of the Chancellor ; but where there is a fixed rule on the subject, it must 
 be conformed to. In the case before us, the complainant did require 
 from the defendant, Sutton, but not from the other defendant, Black, the 
 discovery, before filing his bill ; and under the exception which I hcive 
 just stated, each party should have paid his own costs, except the costs 
 of the defendant Black ; his costs ought to be paid by the complainant, 
 and the Circuit decree is accordingly so modified. 
 
 Johnson and Harper, Js., concurred. 
 
 Rogers, for the appellant. 
 
 Williams, contra. 
 
 }5] 
 
 *Elijah Hinson, and Wife, as tenants in remainder under the 
 
 will of James Perry, dec'd., and Elijah Hinson, as Adm-r. of 
 Philemon Starke, dec'd., v. James B. Pickett. 
 
 John J. Myers, Adm'r. of Baldy II. Starke, deceased, v. James B. 
 
 Pickett. 
 
 A bequest of personal property in the following words, " I lend to my daughter, P. 
 
 S., four negroes [naming them] during her natural life, and theu to the heirs of 
 
 her body," vests the absolute estate in the first taker. [*37] 
 The term ' lend' in a bequest will be considered synonymous with "^we," unless it is 
 
 manifest that the testator did not intend the le^al estate to pass to the lega- 
 
 tee.[^;-38] 
 After a bequest to P. S., during her natural life, a limitation over to the heirs of her 
 
 body, enlarges the life estate into au absolute one, unless the remainder can take 
 
 effect. [*39] 
 Effect of the word " then,'" in such a bequest [*39] 
 
 The appointment of executors in a will " for the intents and purposes therein con- 
 tained," will not control the legal effect of words creating a limitation over to the 
 
 heirs of one's body.[*39] 
 The Court of Equity will entertain jurisdiction of a bill by an administrator against 
 
 a distributee in possession, or one claiming under him, in order to prevent circuity 
 
 of action, and to enable the latter to set up an equitable demand against the estate. 
 Where a defendant is in possession of property, which is claimed in different rights, 
 
 by two plaintiffs in separate bills against him ; the Court of Equity will entertain 
 
 jurisdiction of both cases, and decide in favor of the paramount title, in order to 
 
 prevent further litigation between tlie parties. [*42] 
 Existing equities between the parties, will give jurisdiction in Equity ; and if the 
 
 Court can see that, after sending the plaintiff to law, the defendant will bring him
 
 *35] COLUMBIA, JANUARY, 1833. 29 
 
 back to set up his equity, the Court ■will retain the bill, and decree at once on 
 the questions made.[*-12] 
 
 The effect of two separate bills for the same property being tried together, and 
 decided by one decree, is the same as if all the matters contained in both, had 
 been stated in one ; and the cases may be consolidated. [*43] 
 
 Where the defendant is in possession of personal property as tenant -per outer vie, 
 Equity will entertain jurisdiction at the instance of the remainder-men, in order 
 to compel him to give security for the forthcoming of the property, if there has 
 been any attempt to remove it; and the defendant cannot, in such case, defeat 
 the jurisdiction of the Court, by setting up a paramount legal title in one of the 
 plaintiffs. [*44] 
 
 Where one who was a distributee of an estate conveyed certain slaves of his ances- 
 tor \)y bill of sale, in which no words are used descriptive of his distributive share, 
 and before administration, when he had no legal interest ; the distributive sliare 
 does not pass to the vendee ; but if the vendee has advanced money, in satisfaction 
 of a debt due by the intestate, he may be subrogated to the rights of the creditor, 
 whose debt he has paid.[*45] 
 
 Decretal orders. [*46] 
 
 €uRiA, per O'Neall, J. These cases relating to the same property, 
 were heard looth on the Circuit and in the Court of Appeals together, 
 and the questions arising out of them will be considered as if they arose 
 out of one case. It will be useful to state briefly the facts upon which 
 we are required to pass an opinion. 
 
 Philemon Starke, about the year 1800, intermarried with Margaret, 
 the daughter of James Perry. According to the testimony of one wit- 
 ness Rebecca Graham, the negroes now in dispute, or the parents of 
 of them, went into their possession after their marriage, being sent by 
 James Perry to his son-in-law and daughter. On the 14th of April, 1806, 
 James Perry made and executed his last will and testament, in which is 
 contained the following clause " also I lend to my daughter Peggy Starke, 
 four negroes, namely, one negro boy named Brister, one negro girl named 
 Betty, one negro woman named Abby, and one negro boy named Isaac : 
 I also lend my daughter Ann Harrison, four negroes, namely, one negro 
 boy named Niger, one negro girl named Flora, one negro girl named 
 Patty, one negro boy named George, during their natural lives, and then 
 to the heirs of their hodies.'" He appointed his son Josiah, and his 
 nephew Zadock Perry, e.Kecutors of his last will and testament, "in trust 
 for the intents and purposes" therein " contained. " 
 
 Philemon Starke survived James Perry some time, and died intestate, 
 leaving his widow Margaret, and two children, Baldy H. Starke, and 
 Jane Caroline, now the wife* of Elijah Hinson, him surviving. The p^^og 
 negroes mentioned in the will of James Perry, as bequeathed to his 
 daughter Peggy (the said Margaret) were in possession of_ the said 
 Philemon at his death, and afterwards remained for some time in the 
 possession of his widow. On the 16th of September 1823, the life estate 
 of the said Margaret, in the said slaves (as it was then supposed to be) 
 under the will ' of James Perry, deceased, was seized in execution at 
 the suit of Austin P. Peay v. Margaret Starke, for a debt contracted 
 by her, as it is said, in satisfaction of a debt of her (deceased) husband ; 
 and on the 6th of October in the same 3^ear was sold to the iiliiintilf, Col. 
 Peay, for $500. He kept the negroes in his possession for a little more than 
 one vear after the sale, and on the 26th day of November 1824, sold to 
 Baldy H. Starke the supposed life estate of his mother m them, for
 
 30 SOUTH CAROLINA EQUITY REPORTS. [*36 
 
 $800, and delivered the said negroes to him. On the 29th of Kovember 
 1824, Baldy H. Starke executed a bill of sale of James B. Pickett in 
 consideration of $1289, ($800 of which it was believed is advanced by 
 Pickett to enable the said Baldy to purchase the negroes from Peay) con- 
 veying to him the negroes Abby, Isaac, Betty, Brister, Feriba, Jacob, 
 Mahala, Charlotte, Mat, Letha, and Amanda ; the bill of sale describes 
 them as a parcel of negroes " willed to my mother and the heirs of her 
 body," by her father ; it warrants the title to them as far as the title of 
 the said Baldy H. Starke extends. On the same day, the said Baldy H. 
 and James B. entered into a written contract, whereby the said Baldy H. 
 agreed to hire from the said James B. for the term of five years, the 
 negroes Abby, Isaac, Feriba, Mahala, Mat, Letha, and Amanda, at the 
 annual hire of one dollar ; and the said James B. agreed with the said 
 Baldy H., that if he would, within five years, pay him $1289, with in- 
 terest on $1000 from the 22d of November 1824, that he would make "him 
 titles of the above named Brister, Betty, Jacob and Charlotte." Baldy 
 H. Starke died intestate, in January or February 1829, never having 
 made any payment to the said James B. Pickett, and the complainant 
 John J. Myers administered on his estate. In January 1829, the com- 
 5j,qK-j plainant, Hinson, intermarried with Jane Caroline, *and subse- 
 ■J quently administered on the estate of Philemon Starke deceased. 
 James B. Pickett, had possession of Brister, Betty, Jacob and Char- 
 lotte, from the execution of the bill of sale ; and before the expiration of 
 the year 1829, acquired possession of the rest of the negroes, except 
 Amanda, who died in the possession of Baldy H. Starke, deceased As he 
 alleges, he sold them just before the bills were filed, to James A. 
 Knighton, who carried them out of the State But the Chancellor has, 
 from the facts in evidence before him, come to the conclusion that the 
 sale was a mere pretence, and that in fact the said James B. Pickett 
 sent the said negroes to the western country, by the said James A. 
 Knighton, to avoid the claim of the complainants. On the 2'7th of January 
 1830, Mrs. Margaret Starke conveyed to the complainant Mrs. Hinson, 
 all the interest which she might have in the said slaves, in the event of its 
 being decided that by her father's will they vested in her absolutely as the 
 first taker. 
 
 The following questions require our consideration and judgment : 
 
 1. What estate vested in Margaret Starke, in the said negroes, under 
 the will of James Perry, deceased ? 
 
 2. If an aljsolute one, then, can the complainant, Hinson, as adminis- 
 trator of Philemon Starke, deceased, maintain his bill in the Court of 
 Equity ? 
 
 3. If the title of the said slaves is in the administrator of Philemon 
 Starke, deceased, what right has the defendant, James B. Pickett, under 
 the bill of sale to him, executed l3y Baldy H. Starke, deceased ? 
 
 1. I have struggled to give effect to what I believe to be the clear in- 
 tention of the testator, that Mrs. Starke should take an estate for life ; 
 and that, at her death, her children should, as purchasers, take the 
 remainder. But the technical rule is too strong and too well settled, that 
 the words, "heirs of the body," must be considered words of limitation, 
 and not words of purchase ; and that consequently, the estate vests in 
 the first taker. Notwithstanding, I am not well satisfied with either the
 
 *37] COLUMBIA, JANUARY, 1833. 31 
 
 justice or the reason *of the rule, yet I must be content to say " ita r^oo 
 lex scrijita," and console myself by what is said by one of the great L 
 masters of the science of the Common Law, "that at some other time, in 
 some other place, and on some other occasion, the wisdom of the rule 
 may appear." 
 
 The only three circumstances in this case, which are supposed to vary it 
 from the great body of cases, in which a bequest of a personal chattel to 
 one and the heirs of her body vests an absolute estate in the first taker, 
 are — 1st, that the word "lencV^ is used, instead of the word "give:^^ 2d, 
 that the estate to Margaret Starke is expressly for life : 3d, that the 
 word 'then'' "to the heirs of their bodies," ties up the limitation to the 
 time of her death; and that the words ''heirs of her boclij,^^ are merely 
 descriptive of a class of persons, (her childreyi) who must, then be in 
 esse, and take the estate as purchasers, and not by descent from her (if 
 such a term as descent can be properly applied to personalty.) 
 
 The term lend, when used in a bequest, is generally equivalent to give. 
 In some special cases, it has its appropriate meaning: as in the case of 
 Baker v. Baker & Red, decided by this Court, in December, 1831. But 
 in such cases there is something which shows that the testator did not 
 intend the legal estate to pass to the legatee. In the will under consid- 
 eration, the testator has not manifested any such intention ; he uses the 
 word to pass from him his entire property in the chattel ; and it is worthy 
 of remark, that he uses the word not only in relation to the life estate, 
 which he had created as he supposed, for his daughter, but also to the 
 absolute estate in remainder, which he also supposed he had created, in 
 favor of her children. The testator parts with the entire dominion over 
 the property, and it is absurd to say that an estate which can never revert, 
 can be a loan, which implies that the use of the thing is parted with for 
 a limited time, or for a specified purpose, and the right of property 
 remains in the lender. It is therefore clear that the word " lend,^' in this 
 will, must be considered as synonymous with " give.'^ 
 
 The bequest to Margaret Starke is, it is true, expressly *for life; r^oa 
 but the limitation over to the heirs of her body, showing that the •- 
 testator has parted with the entire property to her and her descendants, 
 enlarges the life estate into an absolute one, unless the remainder intended 
 to be created can take effect. The circumstance of the bequest being for 
 life, cannot, therefore, alter the case. In all the cases of executory 
 devises, to one and the heirs of her body, the intention is obvious enough, 
 that the first taker should take an estate for life only. But a technical 
 rule "nemo est hceres vivenfis,^^ intervenes and defeats tlie intention. In 
 real estate, such words would constitute here, a fee conditional ; in Eng- 
 land, a fee tail. In personalty, the words " heirs of the body,'] can have 
 no legal and technical meaning, so as to affect the estate : for in person- 
 alty, there is no descent cast upon the death of the first taker. The 
 remainder cannot take effect 2^er formam doni, because the subject mat- 
 ter is not inheritable : and it hence follows, that the words "heirs of the 
 body "in personalty, can have no other effect than to enlarge the estate of 
 the legatee to an absolute one. This reasoning, I acknowledge, is tech- 
 nical, but it is in support of an ar))itrary rule of construction, which is 
 itself, technical : and the reasons in support of it must be, necessarily, of 
 the same character.
 
 32 SOUTH CAROLINA EQUITY REPORTS. [*39 
 
 The word "then" cannot have the effect to tie up the limitation, so as 
 to let in the children of Mrs. Starke, as purchasers. For the words "the 
 heirs of her body," still purport an indefinite succession of the line of the 
 first taker- and before there could be a reversion to the testator, there 
 must be an entire failure of descendants, according to the words employed 
 by the testator. But, without pursuing this abstract question further, it 
 will be only necessary to refer to the cases of Guerry v. Yernon, 1 N. & 
 M'C. 69, and Henry & Wife v. Felder, 2 M'C. C. R. 323, in which all 
 the questions involved in this part of the case, are considered and decided 
 in conformity to the views I have already stated. 
 
 Another view was presented by the counsel, for Mr. and Mrs. Hinson, 
 why the remainder ought to be supported ; it is that the testator constitu- 
 ted his executors trustees to preserve it. But I think there is nothing in 
 . , -, the will, to sustain* this position. It is true the testator consti- 
 -J tutes his executors trustees, for the intents and purposes contained 
 in his will : but this was nothing more than the trust which resulted from 
 their appointment as executors, and their acceptance of it. If the testa- 
 tor had used any words leaving the property under the control of his 
 executors, during the life of his daughter, so as to prevent any legal 
 estate from vesting in her l)y the assent of the executors to her legacy ; 
 or if he had bequeathed the property to them, in trust for the use of his 
 daughter during life, and after her death, for the use of the heirs of her 
 body, the argument would have been conclusive. This, however, has not 
 been done, and we cannot give any effect to the words employed beyond 
 the general trust, which the law imposes on every executor, to pay the 
 debts and pecuniary legacies, and to deliver to the specific legatees the 
 property specifically devised. Such a trust was ended, when the execu- 
 tors assented to the legacy to Mrs. Starke ; and can have no effect in sup- 
 porting a limitation over by way of executory devise. I am therefore 
 reluctantly brought to the conclusion, that Mrs. Starke took an absolute 
 estate as first taker under her father's will, and that the marital rights of 
 her husband attached on the property and vested it in him, and that the 
 right of property in the negroes now in dispute is in his administrator, 
 the complainant Elijah Hinson. I say I have come to this conclusion 
 reluctantly, because I believe it is against the testator's intention, and it 
 may seriously prejudice the defendant. But if so, it is an injury of his 
 own seeking. For had he not raised the question, all the other parties 
 would have treated the property as for life, to Mrs. Starke, and after her 
 death to her children in remainder, under the will of James Perry, 
 deceased. 
 
 2. This brings me to the consideration of the second question, can the 
 complainant Hinson, as administrator of Philemon Starke, deceased, main- 
 tain his bill in the Court of Equity ? I think he can. The defendant 
 acquired possession under Baldy H. Starke, who bought no more than a 
 life estate supposed to be in Mrs. Starke. The defendant knew the situ- 
 *4|-| ation of the title, at the time he accepted the *bill of sale from 
 Baldy H. Starke, and only intended and expected to acquire by it 
 an estate in the whole of the slaves, for the life of Mrs. Starke, and a 
 moiety in remainder, in the right of Baldy 11. Starke, as a co-tenant in 
 remainder with Mrs. Hinson. If Baldy H. Starke had been in posses- 
 sion under his purchase from Col. Peay, the complainant Hinson, as
 
 *41] COLUMBIA, JANUARY, 1833. 33 
 
 administrator, would have been entitled to have proceeded against him in 
 Equity, on two grounds : first, that he was a distributee in possession • 
 and to prevent circuity of action, the Court of Equity would have taken 
 cognizance of the case, and if there had been no debts, or if any, after 
 providing for their payment, would have decreed distribution : secondly, 
 that he might have been permitted to set up, and claim payment of the 
 debt of his father^ for which the judgment of A. F. Peay v. Margaret 
 Starke was recovered, and to pay which the slaves had been sold for the 
 life of the said Margaret. The defendant being in possession, under 
 Baldy H. Starke, is prima facie, to be regarded as the owner of all his 
 interest; and if that be true, there would be no doubt that the Court 
 would retain the bill against him, for the same reasons which it would 
 against his grantor Baldy H. ; but it will turn out in the sequel, that the 
 defendant is not the owner of the distributive share of the said Baldy H. 
 in the said shares. Still this cannot oust the Court of jurisdiction ; for 
 he is in possession, claiming to hold all the rights of Baldy H. Starke, and 
 hence he was a necessary party to a recovery and distribution of the 
 property. But the defendant is not only in possession under Baldy H. 
 Starke, but he also stands in the relation of mortgagee to him. For I 
 have no doubt that the Ijill of sale, and the agreement, allowing to Baldy 
 H. Starke the right of redemption, is, in Equity, a mortgage. As 
 against Myers, administrator of Starke, he could not dispute the title of 
 Baldy H. Starke as tenant for the life of Mrs. Starke, and as co-tenant 
 in remainder with Mrs. Hinson. For he entered under that title. As 
 long as the contest was between them, he would have been estopped to 
 deny the title of the mortgagor. It is the intervention of the paramount 
 title *of Philemon Starke, deceased, which Hinson as his admin- |-._j. .^ 
 istrator has been forced to set up, by the defendant's defence, which ^ 
 could alone prevent Myers from obtaining, as administrator of the 
 mortgagor, a decree allowing him to redeem. The assertion of this par- 
 amount title enables the mortgagee to say legally to the administrator of 
 Starke ; "I can neither give up possession to you, nor permit you to 
 redeem, for the property is claimed from me, by another, claiming in a 
 different right." In this point of view, the defendant becomes as it were 
 the holder of a fund, or property, to which two claims are presented ; in 
 such a case he might by a bill compel them to interplead and settle their 
 rights, so as to enable him to pay or deliver it to the legal owner. The 
 same reason which would authorize the Court to sustain his bill, to pre- 
 vent him from being harassed by two suits at law, for the same property, 
 will, when applied to the complainants, authorize the Court to interfere at 
 the instance of the paramount legal right. It will save the litigation of 
 a suit at law, between the complainant Hinson and the defendant, and 
 another suit in Equity, between the two complainants Hinson and Myers. 
 But the defendant cannot be permitted to turn the party out of the Court 
 of Equity, who has a clear right to come into it, to redeem, by setting up 
 the paramount title in the administrator of Philemon Starke, deceased, 
 without submitting to a decree in its favor. 
 
 Independently, however, of this view, the complainant is entitled to 
 
 relief in the Court of Equity. The defendant is in possession, and out 
 
 of Baldy H. Starke's share of the property, is entitled to be paid the 
 
 debt which he owes him, and to secure the payment of which he conveyed 
 
 YoL. 1—3.
 
 34 SOUTH CAROLINA EQUITY REPORTS. [*'i2 
 
 to him the said slaves, if it should not turn out that there are other debts 
 of a higher rank, sufficient to consume the whole of it. This fact, 
 although no ground to prevent the Court of Law from entertaining juris- 
 diction of an action brought to recover the said slaves, is yet such an 
 equity between the parties as authorizes the Court of Equity to retain 
 the bill, and while it decrees the property to be delivered up to the com- 
 */tQi plainant Hinson, at the same time secures the rights *of the defend- 
 -J ant, by making provision as far as practicable, for the payment of 
 his debt. The defendant, too, it must be recollected, furnished the 
 money which enabled Baldy H. Starke to purchase the negroes from 
 Peay. If the fact be, as it is alleged, that Peay's debt against Marga- 
 ret Starke was really contracted in satisfaction of a debt of Philemon 
 Starke, deceased, then I think that the debt ought now to be set up 
 against his estate : and as it has been satisfied with the money of the 
 defendant, I think he may be subrogated to Peay's rights in this respect, 
 in order to aid in the payment of Baldy H. Starke's debt to him. This 
 circumstance in itself constitutes a ground of equity jurisdiction, and it 
 is perfectly immaterial that it is a ground for the defendant to claim the 
 aid of equity ; for if the Court sees that after sending the complainant 
 to law, the defendant will bring him back into the Court of Equity, to 
 set up his equity, the Court will, without this circuity, retain the bill, and 
 decree at once on all the questions which can be made. 
 
 If the complainant, Myers, administrator of Baldy H. Starke, deceased, 
 bad been a party to the bill of Hinson as administrator, it could not have 
 been denied that the Court would entertain jurisdiction both against him 
 and Pickett. 
 
 For, as between Myers, as administrator, and Pickett, as mortgagor 
 and mortgagee, the jurisdiction is unquestionble ; and it would have 
 been equally so, between Hinson administrator, and them, when he 
 alleged, as the fact is, that the property mortgaged, is the property of his 
 intestate, and that out of it, as such, Pickett had no right to be paid, as 
 mortgagee, the debt owing to him, and secured by the mortgage : and 
 for the same reason, that the mortgagor could have no right to redeem. 
 The effect of the two separate bills being tried together, and decided 
 upon by one decree, is precisely the same as if all the matters contained 
 in both had been stated in one, by both of the complainants. All parties 
 in interest are before the Court, and will be bound by whatever decree 
 may be pronounced : the cases, therefore, may be consolidated, and any 
 necessity for the formal addition of Myers, administrator of Starke, 
 *441 *^^ ^ complainant in, or defendant to the bill of Hinson, will be 
 -I thus superseded. 
 
 I am disposed, however, not to rest the jurisdiction of the Court on 
 these views alone : I will add another, which, to my mind, is perfectly 
 satisfactory. When Hinson and wife filed their bill, they had the right 
 to consider Pickett as in possession of an estate in the said slaves for the 
 life of their mother, under the bill of sale of Baldy H. Starke ; and from 
 a tenant per aider vie, who had sold, removed, or attempted to remove 
 the property beyond the jurisdiction of this State, the tenants in 
 remainder had the right in Equity, to demand security for the forthcoming 
 of the property, on the falling in of the life estate — (Swann v. Ligon & 
 Budd, decided at Columbia, May Term, 1828.) Baldy H. Starke
 
 ^44] 
 
 COLUMBIA, JANUARY, 1833. 35 
 
 bought the slaves from Peay, for and during the life of his mother • he 
 conveyed this right, and possibly his supposed interest in remainder, by 
 his bill of sale to Pickett. The complainants were willing to concede to 
 Pickett the life estate of their mother, and from the manner in which he 
 acquired possession, they had the right to suppose he would not raise a 
 contest which would defeat his own rights. If he had conceded, as the 
 complainants had done, that Mrs. Starke had an estate for life in the 
 slaves, and that it was conveyed to him, there could have been no doubt 
 of the jurisdiction of the Court, to have ordered him to give security for 
 the forthcoming of the property, if they had shown, as it appears they 
 did, that he had endangered their rights in remainder. To defeat this 
 plain and obvious equity of the complainants, he has set up the existence 
 of a pai'amount title in Philemon Starke, deceased ; and to meet this 
 possible state of things, the complainant (Hinson) administers on his 
 estate, and superadds the whole legal title to his defective equitable title 
 to a moiety, and amends his bill, and prays a decree under it. Does this 
 oust the jurisdiction of the Court of Equity ? I think it does not. For 
 the defendant sets up the paramount title to defeat the complainant's 
 right to a decree, in a case confessedly within the jurisdiction of the 
 Court of Equity, if their allegations are true. 
 
 On the part of the complainants, it is said this may be *true, and r;j, , - 
 if so, the legal title is also with us, one of us being the adminis- L 
 trator, and we therefore claim a decree in favor of it. The legal title is 
 obliged to be decided on, its validity established, before the complainant's 
 equity can be denied. When this is done, it would be nugatory to send 
 the parties to law to try a question which the Court of Equity has already 
 decided, as it must be there decided. When a legal title is raised by the 
 defendant in his defence, or comes in question collaterally, the Court of 
 Equity must decide on it. In this case it is raised by the defendant's 
 defence, and is necessary to him to prevent their Equity from prevailing ; 
 but it is found on examination, that this legal title set up by the defend- 
 ant, is in one of the complainants, and that therefore he is entitled to the 
 benefit of it, and as it is brought forward by the defendant, the Court 
 must decree upon it in favor of the complainant to whom it belongs. 
 
 3. I am satisfied that the defence, carved out by the defendant for 
 himself, is the destruction of his title, under Baldy 11. Starke, deceased. 
 The right of property being in the administrator of the intestate Phile- 
 mon Starke, when he conveyed to the defendant, he conveyed to him no 
 title, legal or equitable. For his bill of sale purports to convey the 
 slaves themselves ; this he could not do, as the property was in another. 
 It cannot convey his distributive share, for no words descriptive of it, as 
 such, and indicating an intention to convey it, are used. In the slaves, 
 when he conveyed, he had no legal interest whatever ; his interest was a 
 mere equity that the administrator would deliver him one-third, after pay- 
 ment of the debts. Until administration has been made, his right is 
 only inchoate, for it may be that the debts may consume it all. His ])ill 
 of sale, not conveying his distributive share, his administrator is entitled 
 to take it, subject to an account and deduction from it, for the hire of 
 such slaves as he had in possession. The defendant's right to be refunded 
 the money which he advanced to Baldy H. Starke, and to secure the pay- 
 ment of which the slaves were conveyed to him, with the interest thereon,
 
 o6 SOUTH CAROLINA EQUITY REPORTS. [*45 
 
 is a simple contract debt against Baldy H. Starke, and must be paid 
 accordingly, by his administrator, so far as his assets will extend. As 
 ^ . „-, ^ancillary, and perhaps on an account had it may turn out in lieu of 
 -' it, I think the defendant Pickett may be subrogated by virtue of 
 the conveyance to him of the slaves, and the loan of the money to Baldy 
 H. Starke for their purchase by him from Peay, to the right of Baldy H. 
 Starke and Peay, to have $800 of the debt in the case of A. F. Peay v. 
 Margaret Starke, with interest from the •24th of November, 1824, set up 
 as a debt against the estate of Philemon Starke, if it should turn out on 
 investigation that the allegation is correct that the judgment of Austin 
 P. Peay v. Margaret Starke was on a contract entered into by her, to 
 satisfy a debt of the said Philemon. 
 
 It is ordered and decreed that the Chancellor's decree be modified 
 according to the principles contained in this opinion ; that the case of 
 Elijah Hinson and wife, and Elijah Hinson as administrator of Philemon 
 Starke, deceased, v. James B. Pickett, and the case of John J. Myers, 
 administrator of Baldy H. Starke, deceased, v. James B. Pickett, be 
 consolidated, and henceforward considered as one case, in which Hinson 
 and wife, Hinson as administrator, and Myers as administrator, are to be 
 considered as complainants, on the facts stated in both bills, and Pickett, 
 the defendant, to have the benefit of both his answers as one. 
 
 It is also ordered and decreed, that the defendant, Pickett, do forthwith 
 deliver to the complainant Hinson as administrator of Philemon Starke, 
 deceased, the slaves in dispute, or on failing to do so within two months 
 after notice of this decree, that he account to him before the Com- 
 missioner for the value of them, and that he, in either of the alternatives 
 pointed out in this part of the decree, do account with the said Hinson 
 as administrator, before the Commissioner, for the hire of the said slaves, 
 from the time they respectively came into his possession, until the day on 
 which he shall deliver them up, or be charged with their value as the case 
 may be, with interest on the annual hire. 
 
 It is further ordered and decreed, that the Commissioner do inquire 
 ^<4'j-] ^""d report, whether the judgment of * Austin P. Peay v. Margaret 
 Starke, was on a contract entered into by her, for and in satisfaction 
 of a debt of Philemon Starke, deceased, and if so, whether on the 24th 
 of November, 1824, it amounted to and exceeded $800 ; and in that case 
 to allow the defendant, James B. Pickett, credit for that sum, with 
 interest from that time, in his accounts with the administrator of Phile- 
 mon Starke, deceased ; if, however, it did not amount to so much, then 
 for whatever sum it did amount to, with interest from that time. If, 
 however, it was not for the debt of Philemon Starke, deceased, but was 
 the proper debt of the said Margaret, then no credit can be allowed for 
 it in the accounts with the estate of Philemon Starke, deceased, but it 
 must remain as a charge upon the distributive share of the said Margaret, 
 by her voluntarily conveyed to Mrs. Hinson. 
 
 It is also ordered and decreed, that the administrator of Baldy H. 
 Starke do account for the hire of the said negroes during the time they 
 were in the possession of the said Baldy, with interest on the annual hire, 
 and that the same be deducted from the amount of his distributive share 
 of the personal estate of the said Philemon Starke, deceased, recovered 
 in this case.
 
 *47] COLUMBIA, JANUARY, 1833. 37 
 
 It is further ordered and decreed, that the Commissioner do report the 
 amount and rank of the debts of Philemon Starlce, deceased, and also of 
 Baldy H. Starke, deceased, including whatever may be due James B. 
 Pickett on account of the money paid by him to Baldy H. Starke for the 
 conveyance of the said slaves, after deducting (if any sum should be 
 reported) whatever may be allowed to him, as a credit in the accounts of 
 Philemon Starke, or as a charge on Margaret Starke's distributive share, 
 on account of Peay's judgment against her. 
 
 It is further ordered and decreed, that if the slaves are delivered to the 
 complainant Hinson, administrator, that he do forthwith sell the same for 
 partition, on a credit of one year, taking bonds and security and mortgages 
 from the purchasers, and that he do return the amount of sales to the 
 Commissioner, as well as to the Ordinary ; and that the Commissioner 
 do take the same into account in making up his *final report of the r^c.q 
 amount of the estate of Philemon Starke, deceased, for distribution. L 
 
 It is further ordered and decreed, that the personal estate of Philemon 
 Starke, deceased, after payment of his debts, be distributed as follows : 
 one-third as the distributive share of Margaret Starke (after deducting 
 therefrom the amount of Peay's judgment, if it should not exceed $800 
 with interest from the 24th of November, 1824, if the same should be for 
 her proper debt, and not for the debt of Philemon Starke, and paying 
 the same over to James B. Pickett,) be paid to Elijah Hinson and wife, 
 under the voluntary conveyance of Mrs. Starke to the said Mrs. Hinson ; 
 one other third, the distributive share of the complainant, Jane Caroline 
 Hinson, be paid to Elijah Hinson and wife ; and the remaining third, the 
 distributive share of Baldy H. Starke, deceased, after making the deduc- 
 tion for hire hereinbefore directed, be paid to his administrator, John J. 
 Myers, that out of it he do first pay the costs of the case, John J. 
 Myers, administratoi', v. James B. Pickett, up to this time, and then that 
 out of the balance he do pay the debts of Baldy H. Str.rke, deceased, so 
 far as his assets shall extend, in the order and proportions which may be 
 fixed hereafter by the decree of the Court of Equity in this case. 
 
 The defendant must pay the costs of the case of Hinson and wife, and 
 Hinson, administrator : any further costs which may hereafter accrue in 
 this case, will be subject to the order of the Circuit Court, to be hereafter 
 made on the coming in of the Commissioner's report. 
 
 Johnson and Harper, Js., concurred. 
 
 Peareson and NoU, for the complainants. 
 
 Clarke and MWoivell, for the defendants. 
 
 *JOHN C. VOLENTINE V. SaMUEL 0. JOHNSON and ZaCHARIAII j-^^^g 
 
 Johnson. 
 
 Where land is held jointly, each co-tenant has a right to the enjoyment, to the 
 extent of bis interest; and if one tenant voluntarily abaudou his possession, the 
 other remaining, will not be accountable for the rent of the entire tract, but only 
 of such portion as has been rendered productive by the labor of the tenant who 
 abandoned it.[*50]
 
 38 SOUTH CAROLINA EQUITY REPORTS. [*49 
 
 Where one joint tenant is in possession of land, and bis co-tenant is indebted to bim 
 on account of tlie purcbase money, the rents and profits must be applied to the 
 payment of that debt ; first to the interest which had accumulated up to the time 
 the rent became due, and then to the accruing interest, before any part is applied 
 to the principal. [*50] 
 
 Johnson, J. In 1805, the complainant, and defendant, Samuel 0. 
 Johnson, purchased jointly, a tract of land represented to contain about 
 206 acres, at the price of $600. Of this sum, S. O. Johnson paid an 
 amount which left the complainant indebted to hira on account of the 
 purchase, in the sum of $119 30. Both, immediately after the purchase, 
 settled upon the land, and without any definite partition, each cleared and 
 cultivated separate fields and plantations of about equal quantities, both 
 much short of one half of the whole tract, until 1816, when the com- 
 plainant voluntarily abandoned his possession. Samuel 0. Johnson con- 
 tinued in the use and occupation of what he had retained, and from year 
 to year cultivated also parts of that portion which had been possessed and 
 abandoned by the comi)lainant, until 1825, when his undivided moiety 
 was sold under fi. fa. at sheriff's sale, and purchased by the defendant 
 Zachariah Johnson. The bill is for a partition of the land, between the 
 complainant and Zachariah Johnson, and for an account of rents and 
 profits against both the defendants, for the time they have respectively 
 had the possession. The decree of the Circuit Court is predicated upon 
 an account stated by the Commissioner, in which the defendants are 
 charged with one half the annual rents of the whole plantation, including 
 the lands cleared and cultivated by the defendant, Samuel 0. Johnson, as 
 well as that by tl»e complainant, notwithstanding neither of the defen- 
 dants cultivated the whole of the plantation abandoned by the com- 
 plainant ; and error in this respect, is one of the grounds of the present 
 appeal. 
 
 I cannot perceive that there is any room to doubt about this question 
 — natural justice would suggest that one co-tenant has a right to the en- 
 joyment of the estate, to the extent of his interest, and I know of no 
 positive rule which deprives him of it. It deprives the other of no right 
 and does him no wrong. He has the same right, and may profit by it, if 
 he will. He therefore has no cause of complaint. These parties acted 
 *50i "PO" this principle, from 1805, to 1806, each appropriated *to him- 
 self whatwas necessary to his use, of the joint property, neither to 
 the whole extent of his interest, for the witnesses say that neither culti- 
 vated more than twenty-five or thirty acres. The complainant could not, 
 according to the principles, vary the rights of the defendant, by a volun- 
 tary abandonment of the use of his possession ; their rights were precisely 
 the same as if he had continued it. When, however, they used that 
 which the comj)lainant had, by common consent, appropriated to his own 
 use, and rendered productive by his own labor, they derived a benefit 
 which was unequal, and ought to account for it. We think, therefore, 
 very clearly, that the defendants are bound severally, to account for the 
 rents and profits of so much land as they respectively cultivated, from 
 year to year, which was improved and possessed by the complainant, 
 before he abandoned the possession, but not for any part or portion of 
 that improved by them, before or since that time. 
 
 We think, too, that there is error in the manner of setting off the ac-
 
 *50] COLUMBIA, JANUARY, 1833. 39 
 
 counts of rents and profits, against the sum due by the complainant to 
 the defendant, Samuel O. Johnson, on account of the purchase. That 
 sura was a debt due to him, and his liability for rents and profits is in the 
 nature of payments, and must be first applied to the payment of the ac- 
 cruing interest. Samuel 0. Johnson is, of course, entitled to interest on 
 the sum advanced by him from the time of payment ; and the rents and 
 profits, which first accrued, must be applied to the payment of the interest 
 which had accumulated up to the time the rent became due, and so from 
 year to year, until first, the accumulated interest is paid, and then to the 
 accruing interest, before any part is applied to the payment of the prin- 
 cipal. 
 
 It is therefore ordered and decreed, that the decree of the Circuit 
 Court be reformed according to the principles of this decree, and that the 
 Commissioner do state an account comformably thereto. 
 
 O'Neall and Harper, Js., concurred. 
 
 Williams and Glowney, for the appellants. 
 
 Thomson, contra. 
 
 *Elizabetii Cabeen vs. Caroline Gordon, and others, heirs-at-law r^r-t 
 of Mary Tims, deceased. '- 
 
 On a bill to charge a specific legacy with the payment of an anuual sum, all the 
 parties in interest should be before the Court ; and the Court may, at any stage 
 of a case, direct a bill to be amended so as to make proper parties, and this may 
 be done with or without costs, according to the discretion of the£!ourt. [*53] 
 
 The testator, by his will, bequeathed certain negroes to his helpless daughter, B., 
 and then declares " I allow my daughter M., to take care of the said B., and at 
 her decease I allow my said daughter M., to have the said negroes, to her and her 
 heirs and assigns, forever:" Held, that this is a bequest on condition that the 
 direction be complied with, and that if M. should not " take care of B." the 
 remainder would not vest, and that the negroes might be sold for the support of 
 B.[*55] 
 
 The word " allow" in a will, may be construed as synonymous with " direct" or 
 " give," so as to effectuate the intention of the testator [••■56] 
 
 A contract, to be sustained and specifically enforced as a bar to the plaintiff's equity, 
 must be fair, just, reasonable, mutual, and founded on a good or valuable consid- 
 eration. [*5G] 
 
 But fin agreement wanting some of these essential requisites, may avail the defen- 
 dants so far as to prevent the account against them, from being carried beyond 
 the time of filing the bill. [*57] 
 
 On questions of fact, the concurrence of the Commissioner and Chancellor, is gene- 
 rally decisive with this Court. [*58] 
 
 Thomas Cabeen, deceased, by his will, dated, 3d December, 1801, inter 
 alia, bequeathed to his daughter, Mary Cabeen, a negro woman, Jane, 
 "allowing [in the words of the will] the second child (of the negro it 
 any) to my daughter Betsy :" and by another clause, he bequeaths to his 
 "beloved daughter Betsy, a mulatto girl, named Nan; and I allow my 
 daughter Mary, to take care of my said daughter Betsy, and at her de- 
 cease, I allow my daughter Mary to have the said mulatto girl named 
 Nan, with her increase, (if any) together with negro Jane's second chiid,
 
 40 SOUTH CAROLINA EQUITY EEPORTS. [*57 
 
 (if any) to her and her heirs and assigns, forever." The negro woman, 
 Jane/had a second child, as contemplated by the will, called Flora, who 
 has now five children. 
 
 Mary Cabeen intermarried with Amos Tims, and removed to Alabama, 
 where she died, leaving children (the present defendants, and their hus- 
 bands), never having taken care of the plaintiff (the said daughter Betsy), 
 nor having had possession of these negroes. The plaintiff, from infancy, 
 has been helpless and infirm, unable to walk or assist herself in any way, 
 and requires extraordinary care and attention. She is of sane mind, but 
 utterly unfit to manage or transact her own affairs. After her father's 
 death, Naa and Flora (the negroes bequeathed to her), went into her 
 possession, and she has held them ever since. She lived witli, and was 
 taken care of by her mother, until the death of the latter, since which she has 
 been a dependent on her relations — the labor or hire of the negroes being 
 wholly inadequate to her support. In the year 1828, and after the death 
 of his wife, Amos Tims entered into a written obligation to pay the 
 plaintiff $30 per annum, for five years, for Flora and her children, who 
 were to be delivered up to the defendants. The plaintiff received some 
 money under this arrangement ; but after it had existed for a year and 
 upwards, she gave Tims notice that she would not deliver Flora and her 
 children, and that his obligation would be delivered to him, or can- 
 celled. 
 
 ^Koi *The bill is filed to compel the defendants to support and main- 
 -^ tain the plaintiff according to the condition of the bequest ; or to 
 abandon their right in remainder, and to subject the property to her 
 maintenance. 
 
 The defendants, in their answer, declare themselves willing "to take 
 care of" the plaintiff, according to the terms of the will, but rely on the 
 agreement made with Amos Tims, which they set up in bar, and pray 
 to be sustained. 
 
 The Commissioner, on a reference, ascertained and reported $1*75 per 
 annum, as a proper allowance for the maintenance of the plaintiff. 
 
 The case was heard at Chester, July Term, 1832, before Chancellor 
 De Saussure, who confirmed the Commissioner's report, and ordered 
 that the defendants should give security for the sum allowed, or that the 
 negroes should be subjected to the payment thereof. 
 
 From this decree the defendants appealed, on the following grounds : 
 
 l._ That the bill should have been dismissed, for the want of proper 
 parties ; Amos Tims, the husband of the legatee in remainder, in whom 
 the fee vested, not being a party. 
 
 2. That according to a proper construction of the will, the remainder 
 in fee vested absolutely and unconditionally in Mary Cabeen, at her 
 father's death. 
 
 3. That, admitting the bequest was on condition that the complainant 
 should be " taken care of," the Chanceller should have sustained the 
 agreenient with Amos Tims, as in performance of that condition. 
 
 4. That the annual allowance reported by the Commissioner, is too 
 much. 
 
 5. That the defendants should not be subjected to the costs. 
 
 Eaves, for the appellants, commented on these grounds at large, and
 
 *52] COLUMBIA, JANUARY, 1833. 41 
 
 cited and relied on 3 Yes. Ch. Rep. 204 ; lb. 102, 13; 1 Eopcr, 208, 
 319, 333, 186; 2 Con. Rep. 91 ; 2 M'C. Ch. Rep. 306; 20 Yes. Rep. 
 144-5 ; 1 Madock, 286. 
 
 [*53 
 
 Mills, contra. 
 
 *0'jSI'eall, J. The objections to the Chancellor's decree, which 
 have been insisted on in the argument of this case, may be arranged 
 under the following heads. 
 
 1st. The want of parties. 2d. The construction of the clauses of the 
 will of Thomas Cabeen deceased, under which the complainant and the 
 defendants claim. 3d. The effect of the agreement between the com- 
 plainant and Amos Tims, by which the latter agreed to pay her, annually 
 $30 for five years. 4th. The amount to be paid to her annually. 5th. 
 The costs. 
 
 1. Whether the legacy, in remainder, to Mary Tims, is to be consi- 
 dered as vested, or contingent, it is not such an interest as would jure 
 mariti, vest in the husband. It was a mere chose in action, incapable 
 of being reduced, either actually or constructively into possession, during 
 the lifetime of the tenant for life. As husband, Amos Tims did not, and 
 could not, therefore, acquire the absolule estate, or right of property in 
 remiiinder, to which his wife may be entitled ; his interest is as one of the 
 distributees of his deceased wife. The legal estate of Mary Tims at her 
 death, vested in her administrator ; the right to have it distributed be- 
 tween her husband and children, creates in them an equity, which in a 
 case like the present, where an annual sum is required to be paid to pre- 
 serve the remainder, makes it necessary that both the administrator, and 
 the husband and children of Mary Tims, should be parties. The fonuer, 
 as the representative of the legal estate, and the latter, as the parties 
 really in interest in Equity. 
 
 This objection, for the want of parties, ought, it is true, in strict prac- 
 tice, to have been taken by demurrer ; this course, if it had been pursued 
 by the defendants, would have subjected the complainant to the costs, 
 both of the demurrer and amendment. A demurrer for the want of 
 parties, is therefore both the more regular, and usually the more pi'udent 
 course. But there can be no doubt that the Court, at any stage of a case, 
 upon seeing that sufficient parties are not before it, have the right to 
 arrest the case, and direct the bill to be amended, so as to bring in all 
 the parties in interest. This may be done, either upon the payment of 
 costs, or *without costs, as the Court, in the exercise of a sound p^^^ 
 discretion, may think proper. By a sound discretion, I understand 
 not a mere capricious exercise of power or will, but the exercise of a 
 right judgment in determining which of the parties have alone been in 
 default. If the complainant, then she ought to pay costs ; but if, on the 
 other hand, both the complainants and the defendants have alike been in 
 default, or if both alike have been mistaken in supposing that all i)arties 
 necessary were before the Court, then the amendment ought to he with- 
 out costs. In this case it appears from the answers of the defendants,_ as 
 well as the bill of the complainants, that they all concurred in bclicvmg 
 that all the parties interested in the matter in dispute, were before the 
 Court. The objection is now made for the first time, as a shift to which
 
 42 SOUTH CAROLINA EQUITY REPORTS. [*53 
 
 ingenious counsel sometimes resort, to relieve their clients from a decree 
 which operates hardly against their interests. Under these circumstances, 
 the complainant must have leave to amend, (without paying costs) by 
 making the administrator of Mary Tims, deceased, and her husband, Amos 
 Tims, parties to this suit. This preliminary question being disposed of, 
 in such a way as to make it necessary that the case shoulcl go back to 
 the Circuit Court, it would seem to be unnecessary to consider the other 
 parts of the case ; but, as it is altogether an objection of strict practice, 
 and the parties to be made cannot vary the case, and as the other points 
 of the case have been fully developed and argued, and an expression of 
 our opinion upon them may terminate the litigation, we have thought it 
 best to consider and decide the whole case, 
 
 2. It is necessary to consider, and give construction to the two clauses 
 of the will of Thomas Cabeen, under which the parties claim. The 2d 
 clause gives a negro woman Jane, to Mary Cabeen, (afterwards Tims) 
 and the testator then qualifies the gift by saying, "allowing the first 
 child of the said Jane (if any) to my daughter ^^ancy Hill, and the se- 
 cond (if any) to my daughter Betsy." The 5th clause is in the following 
 words " I give and bequeath to my beloved daughter Betsy, one mulatto 
 girl named Nan ; and I allow my daughter Mary to take care of the 
 said daughter Betsy, and at her decease, I allow my said daughter 
 *551 ^'^^T to have *the said mulatto girl, named Nan, with her increase, 
 if any, together with negro Jane's second child (if any), to her and 
 her heirs and assigns, forever." 
 
 The negro Jane had two children, as contemplated by tlie testator's 
 will : the second one, Flora, was put in the possession of the complain- 
 ant, and now has five children. Mary Cabeen married Amos Tims, and 
 most probably, after her marriage, never took care of the complainant. 
 It appears, however, to have been tacitly understood by all parties, that 
 the services of the slaves were sufiicient to the comfortable nudntenance 
 of the complainant ; and that no claim for any care or support was 
 made on Mary Tims or her representatives, until the arrangement was 
 entered into, between the complainant and the father of the defendants, 
 Amos Tims, for the delivery of Flora and her children to him, and the 
 payment by him to her, of an annuity of $30. In the bill filed by the 
 complamant, she only requires the defendants, then to elect whether they 
 will abandon the remainder to their mother and her heirs, or to support 
 her. Under these circumstances, the case will be considered as if Mary 
 Tims had taken care of the complainant until the arrangement was made 
 for the payment of an annual sum for her support, by Amos Tims. 
 
 It will be seen by referring to the clause of the will, that the bequest 
 of the slaves to the complainant, is in the first place absolute ; its reduc- 
 tion to a life estate is made to depend upon Mary taking care of her 
 during life ; in such an event, at her death the said Mary is to take the 
 slaves in remainder. A plain construction of the 5th clause, according 
 to the testator's intention, would make it assume the following form : 
 " I give the slaves Nan and Flora to ray daughter Betsy, but if my 
 daughter Mary shall take care of the said Betsy during her life, then at 
 her death I give the said slaves to the said Mary and her heirs and assigns 
 forever." 
 
 The word " allow," used in this clause twice, is evidently used in two
 
 *55] COLUMBIA, JANUARY, 1833. 43 
 
 meanings, neither of which is its appropriate signification, lu that part 
 of the clause in which the testator spealvs of Betsy being taken care of 
 by Mary, it is used as synonymous with " direct :" in the other *pari, p^ . 
 which creates the remainder in favor of Mary, it is used instead L'*^^ 
 of " give." The clause, when proper words are used to express the 
 testator's meaning, would read thus : " I direct my daugliter Mary to 
 take care of said daughter Betsy, and at her decease I give to my 
 daughter Mary," &c. Reading the clause in this way, according to the 
 testator's intention, it is obvious that the direction must be complied 
 with, or the remainder may never vest. For, to the support of the com- 
 plainant, the whole property might not be sufficient, if she was left to 
 provide for herself : and it is perfectly plain that the testator has left her 
 the uncontrolled disposition of it, unle.<s her sister should take care of 
 her. If she does, then the property, not being necessary for the support 
 of the complainant, will remain for the legatee in remainder. " To take 
 care of" is equivalent to support and maintenance, as well as personal 
 attention. — Indeed all are included under the direction "to take care of" 
 For one cannot be said to be taken care of, who is waited on with great 
 care, but who is neither fed nor clothed ; nor can one be taken care of 
 who is unable to feed herself, or put on her clothes, by placing before her 
 food and raiment. The direction in the will to take care of the com- 
 plainant, enjoins on the legatee in remainder, both personal attention to, 
 and support of her. Upon the faithful discharge of this duty during her 
 life, depends the legacy in remainder. It is, therefore, purely contin- 
 gent, and might, if the complainant had thought proper to pursue that 
 coarse, have been entirely defeated by a sale of the property for her 
 support. 
 
 y. The agreement (as it is called) between her and Amos Tims, to give 
 up to him Flora and her children, and receive from him an annuity of $30 
 for five years, cannot be sustained as a bar to her present claim. I am 
 not disposed to say that the complainant has not sufficient mind to make 
 a contract ; for her brother, who must know her better than any other 
 person, says she has as much understanding as common women, though 
 but little acquainted with business. If, therefore, there was no other 
 objection to it as a contract, I think it could not on this ground be set 
 aside. As to this *alleged agreement, the defendants must be re- p-^^H. 
 garded as complainants seeking a specific performance. In 2 '- 
 Powell on Contracts, 221, the rale is stated to be "that every agreement, 
 to merit the interposition of a Court of Equity in its favor, must be fair, 
 just, reasonable, bona fide, certain in all its parts, mutual, useful, made 
 upon a good or valuable consideration, not merely voluntary ; consist- 
 ent with the general policy of a well regulated society, and free from 
 fraud, circumvention, surprise ; or at least such an agreement must, in its 
 effect, ultimately tend to produce a just end." According to this rule, 
 this agreement cannot be sustained as a contract, specifically to be 
 enforced in Equity. For it is neither fair, just, reasonable, mutual,^ nor 
 upon a good or valuable consideration. As to the complainant, it is 
 without consideration, and is purely voluntary. For she only received, 
 or was to receive a part of that to which she was before legally entitled. — 
 But regarding this agreement as it ought to be, as a voluntary arrange- 
 ment, by which she agreed to accept $30 per annum, iu lieu of being
 
 44 SOUTH CAROLINA EQUITY REPORTS. [*57 
 
 taken care of by the representatives of her sister, and that it is set up as 
 a defence to any claim which the complainant makes, for arrearages of 
 support and maintenance, which she might otherwise have claimed under 
 her father's will, I think it would avail the defendants, so far as to pre- 
 vent the account against them from being carried beyond the time at 
 which the bill was filed. For it was on her part, a voluntary acceptance 
 of the annuity of $30, as a performance of the condition of the will ; and 
 in this point of view it stands as a substitute, so long as she was willing 
 to receive it in place of her claim under the will, and until she gave 
 notice that she required the latter to be complied with. This arrange- 
 ment being purely voluntary, and without any adequate consideration 
 moving to her, cannot be regarded as an agreement or a contract ; it is 
 merely evidence that the condition in the will was performed. She had 
 the right to end the arrangement when she pleased, *by giving notice to 
 the parties bound to perform the condition. This was done, by her letter 
 <j:ro-] to Amos Tims in *the winter of 1829 or '30 ; but as she did not 
 -' make any claim for an allowance to be paid to her for support, until 
 the filing of her bill, and as in it, she does not ask for past, but for 
 present and future support and maintenuuce, she can only have a decree 
 for her support and maintenance, to commence at the day on which her 
 bill was filed. For this annual allowance, the defendants in their answer 
 profess to be willing to be made liable ; they must pay such sum as may 
 be due at the next Court, and secure to be paid in future annually, during 
 the life of the complainant, such sum as may be fixed by the Commis- 
 sioner's report, as a suitable annual allowance, or be barred from any 
 claim to the remainder in the said slaves. 
 
 4. As to the amount of $175, fixed by the Commissioner's report, as a 
 suitable allowance to be paid by the defendants for the complainant's 
 support and maintenance, we see no reason to think that it is contrary to 
 the weight of the evidence before him But upon a question of fact, the 
 concurrence of the Commissioner and Chancellor is generally decisive 
 with this Court. It would be only on very extraordinary occasions, that 
 we should (if at all) undertake to\-evise their conclusion. 
 
 5. With the question of costs, we should not be disposed to interfere. 
 It was a matter of discretion with the Chancellor ; and we cannot see 
 that it has been improperly exercised. But as the case must go back for 
 the purpose of making additional parties, (unless the defendants should 
 hereafter waive the objection,) the question of costs must be reserved 
 until the case shall be finally adjudicated by the Circuit Court. 
 
 It is ordered and decreed, that the case be remanded to the Circuit 
 Court, and that the complainant have leave to amend her bill (without 
 the payment of costs,) by making the administrator of Mary Tims, de- 
 ceased, and Amos Tims, parties ; but if the defendants are disposed to 
 waive the objection of the want of parties, they may do so upon filing 
 with the Commissioner within three months, their consent to waive it. In 
 *59l *^^^ *^^®"^' *'^^ ^^^^^^ of the Circuit Court is modified *according 
 -• to the principles contained in this opinion, and the Commissioner is 
 dn-ected to ascertain and report to the next Court, the sum which will then 
 be due to the complainant for maintenance from the filing of her bill, at 
 SI 75 per year, and that he cause the defendants to exe'cute bond, with 
 good personal security to be approved by him, conditioned for the pay-
 
 *59] COLUMBIA, JANUARY, lS3b. 45 
 
 ment of $175, from the next Circuit Court of Equity for Chester, to the 
 complainant, during her life. 
 
 Johnson and Harper, Js., concurred. 
 
 BUCKNER HaIGOOD V. JOHN D. WeLLS, 
 
 Trustees of estates shall not exceed in expenditure the amount of the income, so as 
 to charge the capital ; in some cases of necessity this has been sanctioned by the 
 Court: (a) but where the defendant had assumed tlie management of a testator's 
 estate without authority, and refused to qualify as executor, it was held that he 
 was not entitled to the privileges of a trustee. The Court would not require him 
 to give security, but ordered him to account annually before the Commissioner, 
 until he qualified, and that no balance should be struck in his favor, nor allowance 
 made for his personal services. [*60] 
 
 The Court will not discharge an executor from his office. [*61] 
 
 William Haigood, deceased, by his last will and testament, executed in 
 1821, devised and bequeathed his estate to his wife and children, and 
 directed his execittors to keep the negroes on the plantation, for the sup- 
 port of the family, until his youngest child should come of age (which 
 will be in 1838,) and that then they shall be equally divided among his 
 children ; and appointed his wife, Nancy Haigood, and the plaintiff, his 
 brother, his executrix and executor. Nancy Haigood refused to qualify ; 
 the plaintiff did, and took on himself the execution of the will, in the 
 payment of debts and in the management, for some time, of the planta- 
 tion, for the maintenance of the family. In 1828, Nancy Haigood married 
 the defendant. Wells, who thereupon assumed the exclusive management 
 of the negroes and plantation, has received the avails of the crops, and 
 refuses to qualify as executor. The bill charges that the defendant lat- 
 terly refuses to account to him as executor ; that the plaintiff's liability is 
 endangered ; and prays for a discharge from the executorship ; and that 
 the defendant may account, and be required to give security for the man- 
 agement of the estate. 
 
 *The case was first heard before Chancellor Thompson, at r^^n 
 Winnsboro', who refused to relieve the plaintiff from his executor- ^ 
 ship, or to require the defendant to give security, but ordered him to 
 account. 
 
 Under this order the Commissioner stated an account bctweeu the 
 estate and the defendant, and reported a balance in his favor. 
 
 On the case coming before Chancellor De Suassure, at July Terra, 
 1832, on exception to the Commissioner's report, he so modified the 
 report, as to strike off the balance reported in favor of the defendant, on 
 the ground, that a trustee of an estate for the support of minors, should 
 not expend more than the income. 
 
 From these decrees both parties appealed : the plaintiff, because the 
 Chancellor had refused to relieve him from his executorship, or to require 
 the defendant to give security ; and the defendant appealed, because the 
 
 (a) Black v. Blakely, 2 M'C. Ch. Rep.
 
 46 SOUTH CAROLINA EQUITY REPORTS. [*60 
 
 Chancellor refused to allow liim the balance reported in his favor, which, 
 as he alleges, was for the necessary expenditures of the family. 
 
 f*eareson, for the plaintiff. 
 
 Clarke and IPDoivell, for the defendant. 
 
 Harper, J. With respect to the defendant's first ground of appeal, 
 we concur with the Chancellor, that trustees of estates for the support of 
 minors " shall not exceed in expenditure the amount of the income, so as 
 to charge the capital of the estate." In some cases, however, of manifest 
 necessity, this has been authorized by the Court, and when done by a 
 trustee in such a case as the Court would have authorized, has been sub- 
 sequently sanctioned. But the defendant is not entitled to the privileges 
 of a trustee ; he must be regarded in some degree as a wrong do€?r. We 
 gather from the Commissioner's report, that up to 1826, the defendant 
 acted as the agent of the complainant, in the management of the estate, 
 and accounted to him for the crops, but after that year refused or neglec- 
 ted to account. He has thus left complainant responsible for the man- 
 ^p, -, agement of the estate, though he has excluded him from the *coutrol 
 -J of it, and when he might have relieved him of that responsibility, by 
 qualifying as an executor himself. He has besides, though reported to 
 be industrious and frugal, managed badly. If managed properly, the 
 property would in all probability have supported the family from the 
 income. This is a sufficient reason to prevent the defendant's breaking 
 in upon the capital. 
 
 We cannot discharge the complainant of his office of executor. This 
 Court changes other trustees upon proper cause shown ; but this has 
 never been done in the instance of an executor. Nor do we perceive that 
 we can compel the defendant to give security. He might be restrained 
 from meddling with the management of the estate, and be compelled to 
 give up the control of it to the complainant ; but this is not what the 
 complainant desires, and it would be extremely inconvenient. The family 
 are to be supported by the estate, they must live on the land and have the 
 services of the slaves, and it is a matter of almost absolute necessity, that 
 these should be in some degree under the control of the defendant, the 
 head of the family. 
 
 What we can do, however, is to confirm the decree of the Chancellor, 
 that no balance shall be struck in his favor, and further to decree that 
 until the defendant shall think proper to qualify as executor, he shall 
 account annually before the Commissioner ; that in no instance shall any 
 balance be struck in his favor, nor shall any thing be allowed for his 
 personal services. The decree of the Chancellor is modified accord- 
 ingly. 
 
 Johnson and O'Neall, Js. concurred.
 
 '62] COLUMBIA, JANUARY, 1833. 47 
 
 *MiCHAEL Lever v. Wm. Lever, Executor of George Lever, y^ 
 
 deceased. ["^^^ 
 
 The possession of an agent or bailee is not adverse until after demanrl ; and when 
 an a<ient or attorney receives money for his principal, there is no cause of action 
 till demand, and the statute of limitations does not begin to run till then. [*67] 
 
 Where a note is signed only by the maker affixing his mark, and the subscribino- 
 witness is the executor of the (deceased) payee, the note cannot be given in 
 evidence on proof the handwriting of the witness; it must be shown that the note 
 existed before the witness' interest accrued. [*t38] 
 
 '" The bill states, that on the plaintiff's attaining full age, George Lever, 
 his father and the defendant's testator, proposed to undertake the man- 
 agement and control of his estate, and to transact all his business, on the 
 ground of his mental imbecility and want of education, which was agreed 
 to by the plaintiff; that, accordingly, his father, for about sixteen years, 
 and until his death, did transact his business and manage his estate, as an 
 agent or trustee, and receive several large sums of money and the pro- 
 ceeds of the plaintiff's crops, for which he never accounted. That during 
 this period he received from George Lever several small sums of money, 
 for which he gave his notes, as it was understood, to serve as a memo- 
 randa of the amounts received by him out of his own funds in his father's 
 hands ; but that the defendant has, since the death of George Lever, 
 commenced suit on these notes against the plaintiff. That, on one occa- 
 sion, the said George Lever induced the plaintiff to confess a judgment to 
 him, for $251, for the purpose, as he told him, of protecting him against 
 a scheme which certain designing persons had, to defraud him of his land, 
 and that by confessing this judgment the land would be secure. And 
 that this judgment, thus fraudulently obtained, the defendant is about to 
 enforce. The bill prays an account ; and a perpetual injunction against 
 the judgment, and further proceedings on the notes. 
 
 The defendant, in his answer, denies that George Lever was the agent 
 or trustee of the plaintiff ; but admits that he received several sums of 
 money, which, however, he disbursed for the plaintiff's use. As regards 
 the judgment, he avers his belief that it was confessed to secure certain 
 debts then owing to George Lever, and to imdemnify him against simdry 
 liabilities which he had incurred for the plaintiff. That the several notes 
 referred to by the plaintiff, were not given as he alleges, as memoranda, 
 but for value received, and that wlien they were respectively given, 
 *the said George Lever fully accounted and settled with the plain- r-^^^ 
 tiff, for all moneys previously received, and at such times there were '- 
 balances due to him, for which the notes were given, and that the defend- 
 ant was himself present, on these occasions, and drew tlic notes and 
 witnessed them. The answer sets up these various accountings and set- 
 tlements, by way of plea in bar, to any account up to the date of the notes, 
 and pleads the statute of limitations. 
 
 The evidence showed that George Lever acted as the ])laintiff's agent 
 or trustee, in the transaction of his business, and that he received the 
 avails of the crops, and several large sums of money. It was proved, 
 also, that George Lever when about making his will said "he intended to 
 satisfy the judgment he held on Michael, and to give him up his laud
 
 48 SOUTH CAROLINA EQUITY REPORTS. [*63 
 
 titles ; he beld the judgment to keep people from defrauding him of his 
 land, bnt lie would give up the judgment, and if he fooled away the land, 
 he must do it." In support of his plea of a former account and settle- 
 ment between the pai'ties, the defendant produced the notes referred to in 
 his answer, to which, as it seemed, the plaintiff had affixed his mark, and 
 offered to prove their execntion by proof of his own (defendant's) signa- 
 ture, as the subscribing witness. The Chancellor held, that this was not 
 sufficient to authorize the notes to be received, and rejected them. 
 
 The case came to trial at Newberry, July Term, 1832, and the follow- 
 ing decree was afterwards delivered. 
 
 September, 1832. Johnston, Chancellor. The allegation, that the 
 notes taken by George Lever from the plaintiff, were intended merely as 
 memoranda, may be true, but there was uo proof to support it, and that 
 part of the bill must fail. I think the proof is sufficient to establish the 
 allegation, that the two hundred and fifty-seven dollars' judgment was con- 
 fessed to cover the plaintiff's land from crafty speculations. The defend- 
 ant's answer on this point, is not as of his own knowledge, and requires 
 less proof to rebut it, than if it had been. I shall therefore sustain that 
 part of the ))ill ; but the injunction to restrain the enforcement of the 
 execution, will continue only until further order — it being the intention of 
 ^n^-^ the Court to ^perpetuate it, in case the accounts on the other part of 
 -J the case hereinafter to be ordered, shall result in favor of the plain- 
 tiff; but if in favor of the defendant, then to make the judgment stand as 
 collateral security, for the balance which shall be struck in his favor. 
 
 The great difficulties of the case, however, concern the other parts of 
 the bill, which charge that George Lever undertook to act, and did act as 
 trustee of the plaintiff. I think the proof, that he did so undertake and act, 
 is clear and conclusive. His own admissions were too numerous to leave a 
 doubt of the fact. I have not only uo doubt that he acted as the plain- 
 tiff's trustee, but I am constrained to say I do not believe he fully per- 
 formed his trust. On the contrary, I am fully persuaded that at his 
 death he was largely in arrear to the plaintiff. The sums received by 
 him from time to time, were too large to have been absorbed in the plain- 
 tiff's annual expenses. It is pretty clear that these could not have so far 
 exceeded the crops, as to have given room for the sums received from 
 Snelgrove and others, and from Caldwell. If he, acting as agent, per- 
 mitted the expenses to run to such an amount, it wears so much the 
 appearance of neglect and unfaithfulness, that he ought to have secured 
 ample vouchers, either from Michael's creditors, or from Michael himself, 
 to show that he paid out these exorbitant sums — exorbitant considering 
 the means of Michael. But so far from it, the circumstantial evidence is 
 very strong against him, and particularly to show, that the money received 
 by him, from Mr. Caldwell, was by him vested in the land now owned by 
 William Lever. These remarks will show, that I am far from believing 
 the plea of settlement to be founded on fact. 
 
 Having this view of the case, believing as I do, conscientiously, that 
 the moral justice of the case is clearly with the plaintiff, I cannot express 
 the regret which I feel in being compelled to sustain the plea of the act 
 of hmitations. But I am to declare, and not to make the law. That is 
 the provmce of the people. I am bound to decide the case made before 
 me. Ihe case made, in my conception, is one to which the act is a good
 
 *64] COLUMBIA, JANUARY, 1833. 49 
 
 defence. If it *had been alleged, that George Lever vested the 
 sums received by him from Caldwell, in the purchase of Paysinger's L"^"^ 
 land, it would have been worthy of inquiry, whether a trust did not 
 result to the plaintiff. But no such fact is alleged. The case set out 
 in the bill, is one of money received by George Lever, to be expended 
 for the benefit of the plaintiff. It is not denied but that the case is one 
 of trust. Every bailment, every agency, is a trust. But it is a vulgar 
 error to suppose that every trust is exempted from the operation of the 
 act of limitations. (Kane v. Bloodgood, 7 John's. Ch. Rep. 90.) On 
 the contrary, no trust is exempted from its operation, but one which is 
 express, technical and continuing ; and one, moreover, the remedy for the 
 breach of which is exclusively in this Court. The latter part of this 
 position is what governs in this case. When there is a concurrent 
 remedy in law and equity upon the case made, the limitation is the same 
 in both Courts. Otherwise, a plaintiff by electing his tribunal, might cut 
 his opponent off from a defence, to which the law of the land entitles 
 him. (20 John. Rep. 5T6 ; 7 John. Ch. Rep. Ill, U, 21 ; Salk. 243, 
 610; 3 Bro. 639, note; 2 Sch. & Lef. 607; Willes' Rep 401, 405.) 
 Now there can be little doubt but that the plaintiff could have main- 
 tained an action at law against his father, for each sum received by him 
 as he received it, and to the same extent that he would be bound at law 
 by his laches, is he bound in this Court. He is bound, as to all sums 
 received more than four years and nine months before the filing of this 
 bill. I have paid no attention to the incapacity of Michael, because it 
 was not needed to render it more probable that his father undertook to 
 act for him. The other proof put that matter beyond doubt in my 
 mind. And this was the only view with which I received the testimony 
 on that point. I could not have received it, if, with a view to free him 
 from the rules of law w^hich would have applied to him, if he had 
 possessed the strongest mind. This is not a question of fraud, but of 
 trust. And as to the act of limitations, strength or weakness of mind 
 can make no difference, unless there be a total incapacity. If that was 
 intended to be shown, other consequences would have ensued. The same 
 proof would have shown that the ^plaintiff could not institute this j-^^p 
 suit, and the bill should be dismissed, as having been filed by one ^ 
 incapable of binding himself. 
 
 It is decreed, that the Commissioner take an account on reference, 
 when he shall charge the estate of George Lever, with all suras which 
 shall be proved to have been received by him, as agent or trustee of the 
 plaintiff, within four years and nine months before the filing of this bill — 
 allowing all proper credits and disbursements ; that an injunction do issue 
 to restrain, until the further order of the Court, the collection of the 
 judgment described in the bill as having been entered in the Common 
 Pleas for Newberry District, the 10th January, 1827, and that the costs 
 of this suit be paid out of the estate of George Lever. 
 
 From this decree both parties appealed. The plaintiff appealed from 
 so much of the decree as sustains the statute of limitations : and the de- 
 fendant appealed on the grounds that the Chancellor enjoined the judg- 
 ment without sufficient evidence that it was fraudulently obtained, and if 
 it had been so obtained, the plaintiff was iMiHicejis criminis, and not 
 YoL. L— 4
 
 50 SOUTH CAROLINA EQUITY REPORTS. [*66 
 
 entitled to relief; and because the Chancellor rejected the notes, on the 
 proof which was offered of their execution. 
 
 Summer, for the defendant, insisted that the judgment was to be con- 
 sidered as founded on a valuable consideration, and as prima facie valid, 
 until the contrary was proved ; and that the evidence given to impeach 
 it was not sufficient to authorize the decree against it. As regards the 
 moneys for which an account is claimed, this was but the common case of 
 money had and received, for which the plaintiff" could maintain his action 
 at law: trusts against which the statute of limitations does. not run, 
 must be purely technical — such as are cognizable only in equity ; but 
 the plaintiff's demand is legal, and the statute applies : 7 John. Ch. Rep. 
 124; 20 John. Rep. 516; 2 Atk. '210. As to the evidence on the 
 execution of the notes, he- cited 2 N. & M'C. 364 ; Strange, 34 ; IP. 
 W. 289 ; 1 Starkie, 342. 
 
 5,.^h-| Fair, for the plaintiff, contended that it was proven *conclusively, 
 -' that the defendant's testator acted as the plaintiff's trustee, and his 
 executor cannot disclaim that character or avoid its consequences ; that 
 the statute of limitations did not apply to this case, w^hich was one of a 
 trust ; and in any event, it did not commence running until after a 
 demand of the money, and the plaintiff's rights had been usurped by a 
 refusal to pay : 2 Bail. 51 ; 1 Taun. 572 ; Willison v. Watkins, 1 Law 
 Journal, 132 ; 5 John. Ch. Rep. 523. As to the effect of the notes, 
 and the proof of their execution, he cited 1 P. W. 289 ; Salk. 386 ; 1 
 Strange, 101 ; 5 T. R. 371 ; 1 Starkie, 338. 
 
 Poj^e, for the defendant, in reply, urged that the answer of the defend- 
 ant, as to former accounts and settlements, being positive and uncontra- 
 dicted, should be regarded as sufficient to sustain this part of his defence. 
 As to the evidence on the notes, he referred to 2 East, 182 ; and on the 
 statute of limitations, to Starke v. Starke, 4 Law Journal, 503. 
 
 Harper, J. I shall first consider the complainant's grounds of appeal. 
 We concur with the Chancellor, that " when there is a concurrent remedy 
 in law and equity upon the case made, the limitation is the same in both 
 Courts," and the present case is to be considered as at law. But at law, 
 the statute does not begin to run till there is some usurpation of the 
 claimant's right, and a cause of action has arisen. The possession of an 
 agent or bailee (and a bailment is a trust) is the possession of the bailor 
 or principal, and is not adverse till demand made. In the case of a 
 simple deposit of money, to be left for the depositor, or to be paid accord- 
 ing to his direction, there is no cause of action till demand be made or 
 an account stated, and the statute does not begin to run till then. So in 
 the case of an attorney, who receives the money of his client, or a sheriff 
 who receives the money of a plaintiff in execution. So of a steward or 
 factor. Topham v. Braddick, 1 Taunt. 572. And see Chancellor 
 Kent's decision in Coster v. Murray, 5 Johnson's Ch. Rep. 531. On 
 this ground, then, we think the Chancellor's decree must be reversed ; 
 and this disposes of all the complainant's grounds of appeal. 
 *68] *With respect to the defendant's appeal from so much of the 
 Chancellor's decree as regards the judgment confessed by the com- 
 plauiant to George Lever, we are inclined, though the testimony was not 
 very full, to concur with the Chancellor, who could best judge of the effect 
 of the evidence. If the defendant desires it, however, he may have an
 
 *(38] COLUMBIA, JANUARY, 1833. 51 
 
 issue or issues to a jury, to inquire whether the judgment was founded on 
 any, and what consideration, or was voluntary — whether it was fraudu- 
 lent, or intended as a security, and if intended as a security, how much 
 is due upon it. At the same time an issue may be taken to try the plea 
 of final account and settlement. 
 
 With respect to the appeal from the decision of the Chancellor, reject- 
 ing the evidence of the defendant's handwriting, to prove the execution 
 of the notes, we concur with the Chancellor. The cases referred to in 
 the argument, do establish, that where a subscribing witness to a note or 
 obligation becomes interested or is appointed executor, it may be given 
 in evidence, upon proof of his handwriting. But in those cases, I take 
 it for granted, the instrument was signed by the maker's own hand, the 
 genuineness of which signature might be the subject of investigation, or 
 that the instrument was shown to have been in existence before the 
 witness's interest accrued. The door which would be opened to fraud, is 
 conclusive against the reception of such evidence in a case like the 
 present. Every executor might manufacture as many notes as he pleased, 
 of persons unable to write, and recover them, under proof of his own 
 handwriting as subscribing witness. It might be different if the defend- 
 ant had shown that the notes attested by him were in the possession of 
 George Lever, in his lifetime, and found by the defendant among his 
 testator's papers. 
 
 The decree of the Chancellor is modified according to the views 
 expressed. 
 
 Johnson and O'JSTeall, Js., concurred. 
 
 *Wm. Clarke and Wife v. James Saxon and Anne Saxon. [*69 
 
 The plaintiff sbould set out in his bill, his title, and the grounds on which he expects 
 to recover, and the proof should correspond with the allegations contained in it; 
 but if parties go to trial, on general statements, contained in a bill or answer, 
 and permit proof to be given which ought to have been exhibited on the record, 
 the Court is bound to decree on the case thus made, if enough appears on the 
 record to warrant the judgment, which the facts proved, authorize the Court to 
 pronounce. [*71] 
 On a bill filed to compel defendants to give security for the forthcoming of property, 
 to entitle the plaintiffs to a decree, it is not necessary that a case of trust created 
 by express contract should be made out. [*7.3] 
 Where a feme covert has a separate estate for life in some, and undivided interest 
 as tenant in common, in others, of the slaves in question, she is a trustee for 
 those claiming in reversion and as co-tenants ; and on a bill filed to compel her 
 and her husband to give security for the forthcoming of the property, her cover- 
 ture cannot be jjleaded in bar of the trust, nor in abatement of the suit ; nor can 
 her husband avail himself of the statute of limitations; but on proof that they 
 intended to remove the slaves, they were ordered to give security not to remove 
 them beyond the State. [*74] 
 
 This bill was filed to restrain the defendants from removing certain 
 rslaves out of the State, which the plaintiffs claimed in reversion. The 
 defendant Anne Saxon pleaded coverture, and it was agreed that no 
 other answer should be required of her, and that the costs as to her.
 
 52 SOUTH CAROLINA EQUITY REPORTS. [*69 
 
 should abide by the decision of the Court on her plea. James Saxon, by 
 his answer, sets up title in himself by purchase, and under the statute of 
 limitations. 
 
 Chancellor Johnston, before whom the case came to a hearing at 
 Laurens, July, 1833, sustained the plea of coverture ; and dismissed the 
 bill on the ground that a trust was neither charged in the bill nor estab- 
 lished by the evidence. From this decree the plaintiffs appealed The 
 allegations of the bill, and the evidence given on the trial, are so fully 
 stated in the opinion of the Court, as to require no further report. 
 
 Farroio and Thovison, for the appellants. 
 
 Irhy and Young, contra. 
 
 O'Xeall, J. It appears from the proof, that Edmund Craddock, on 
 the 17th of March, 1789, conveyed to James Yancy, in trust for the 
 children of the said Edmund, to wit, Mary, Anne, Edmund, Thomas, 
 John and Judith, inter aha, two slaves, Reuben and Dave. Some time 
 after the execution of this deed, the said Edmund died, and his widow- 
 Anne administered on his estate, and after some time interraaiTied with 
 Barnes Saxon ; the trustee James Yancy is dead, and his children are all 
 either dead or removed from the State. The slaves remained in the 
 possession of the widow Anne, from the death of the said Edmund until 
 her marriage with the said James, and after her marriage they remained 
 in the possession of herself and her husband, until the 4th of April, 
 1815, at which time James Saxon delivered them to the cestui que trusts, 
 who suffered them still to remain in the possession of their mother (the 
 defendant Anne). On the 7th day of August, 1815, the children of 
 Edmund Craddock exchanged with William Clarke the man Dave, for a 
 ^:.Q-j girl named *Sylvia and $75 in cash, and agreed that " the said negro 
 -^ and money is to be put to the support of their said mother," (the de- 
 fendant Anne) "during her life, or more plainly speaking, the labor of said 
 negro, and the use of the said money during her life." On the 8th of 
 January, 1818, James Saxon execuud to the children of Edmund 
 Craddock, a deed reciting the trust-deed executed by Edmund Craddock, 
 and his delivery of the property described in it to the cestui que trusts 
 on the 4th of April, 1815, and by it confirms and re-delivers the property 
 to them. Reuben remained in possession of Saxon and wife until 1825, 
 when Robert Creswell, Esq., bought him in the presence of Saxon and 
 wife, from William Clarke, as agent for the children of Edmund Crad- 
 dock, at the price of 400 or 450 dollars ; this purchase of Reuben was 
 for himself; he had previously paid in part of his price $190, which was 
 laid out in the purchase of a boy Frank, who was conveyed in the first 
 instance to Sarah E. Saxon, a daughter of the defendants; but on some 
 dissatisfaction being expressed by the complainant, William Clarke, and 
 some of the children of Edmund Craddock, the said Sarah conveyed the 
 saidjDoy Frank, to William Clarke, in trust for the sole and separate use 
 of Nancy Saxon (the defendant Anne) during her life, and after her 
 death for the use of her children by Edmund Craddock, deceased. 
 After some time Frank was sold or exchanged for another man named 
 \"^/i' ^"^^ °" Clarke complaining about it, it was agreed that Yirgil 
 should stand in place of Frank, and Brandon, from whom he had been
 
 70] 
 
 COLUMBIA, JANUARY, 1833. 53 
 
 bought, on the 10th of July, 1827, executed a bill of sale for him to the 
 complainant, Clarke. On the 13th of January, 1825, William Moore 
 conveyed to the complainant, Clarke, as trustee for the heirs of Edmund 
 Craddock and Mrs. Anne Saxon, a negro girl named Sally ; she was 
 probably paid for out of the balance of the price of Reuben, for Mr. 
 Cresvvell's note, for it was presented to him by Moore, who sold and con- 
 veyed her, and he paid it to him. These negroes, to wit, Sylvia, Virgil, 
 and Sally, and their increase, are in the possession of the defendants, and 
 are now claimed by James Saxon as his own ; but it is manifest from the 
 proof, that this claim is a recent notion, most probably the effect of a loss 
 of memory from old *age, and the consequent belief that whatever r-,_^.^,, 
 is in his possession is his own. The testimony of Major Dunlap L ' 
 and Mr, Creswell, most clearly show that to the original trust property 
 and its substitute, the defendant James Saxon did not pretend to have 
 any claim. His schedule in order to obtain a pension from the United 
 States, was sworn to by him at Spring Term, 1822, and in it he does not 
 pretend any claim to the slaves, the whole amount of the property 
 embraced in it is about $176. It is not pretended that any of these 
 have been by him since acquired. The defendants were about removing 
 from the State, and taking with them the said slaves. The complainant 
 Clarke and his wife Judith, one of the children of Edmund Craddock, 
 filed their bill to prevent the removal of the said slaves. To it, the de- 
 fendant Anne pleaded coverture, and the defendant James Saxon 
 answered, alleging that Reuben and Dave were his own property, and 
 that the other negroes substituted for them, he purchased with the pro- 
 ceeds of Reuben and Dave, and $200 of his own money. 
 
 The statement in the bill, under which this proof was given, after 
 stating the execution of the trust-deed, is as follows, to wit : "that the 
 children, although all come of age long since, have not divided said 
 property among them, but have consented to leave the same in the 
 possession of their mother, Anne Saxon, during her life, formerly the 
 wife of the said Edmund Craddock, now the wife of James Saxon. 
 That, by virtue of a power given by the deed aforesaid, the property has 
 been to some extent exchanged, and has also increased so that there are 
 now, as your orator and oratrix believe, eight negroes subject to the said 
 trust, a fellow, two wenches and children, the names, of some of whom 
 are unknown to your orator and oratrix. " The bill then charges that 
 the said Anne Saxon and her husband, James Saxon, are about to re- 
 move from this State, and carry with them the aforesaid negroes, contrary 
 to the wishes of the complainants. 
 
 This statement of the complainant's title to the slaves, and of the 
 character of the defendant's possession, is certainly a very general and 
 loose one ; and had the proof been ^objected to on the ground that ^,,2 
 it did not correspond with the allegations contained in the bill, it 
 ought not to have been received, and the complainants must have 
 amended their bill, and exhibited the papers on which they sought to 
 recover. But from the report of the Chancellor, no such objection was 
 made, and if parties go to trial on general statements contained in a bill 
 or answer, and permit proof to be given, which onght to have been set 
 out and exhibited, the Court is bound to decree on the case thus made. 
 It is true, pleadings, both at law and equity, are intended for the two-
 
 54 SOUTH CAROLINA EQUITY EEPORTS. [*72 
 
 fold purpose of informing both the parties and the Court : the former as 
 to the case to be made and answered by the proof; and the latter as to 
 the case upon which judgment is to be rendered. So far as parties are 
 concerned, the value of this rule is to prevent surprise. If a defendant 
 permits evidence to be given under a general charge, without objecting 
 to it, it is taken for granted that he is not surprised by it. To the Court, 
 the only importance of the rule is, that enough should appear on the 
 record to warrant the judgment which the facts proved, authorize the 
 Court to pronounce. If the evidence given to the Court makes a case 
 wholly foreign from that made by the bill and answer, then it follows that 
 no decree can be pronounced upon it, and if it is the complainant's proof, 
 the bill must be dismissed. The inquiry in the case before us must be : 
 first, is the case made by the proof, wholly foreign or different from that 
 made by the bill, and resisted by the answer. The case as made by the 
 bill, is that Edmund Craddock conveyed the slaves Reuben and Dave to 
 James Yancy, in trust for the use of his children, that the cestui que 
 trusts, instead of dividing the property and appropriating it to their own 
 uses, suffered it to remain in the possession of their mother, Anne Saxon, 
 during her life ; that the property has been exchanged for other slaves, 
 and now consists of a fellow, two wenches and children. The defendant, 
 James Saxon, answers and claims not only the substituted slaves, but 
 those conveyed by the trust-deed, as his own property, by virtue of a 
 purchase made by him of them, at Sheriff's sale in 1T94 or '95, He 
 ;^,-o-| admits that the *slaves substituted for the trust slaves, were 
 -^ acquired by exchange, or by purchase, with the proceeds arising 
 from a sale of them, except so far as $200 excess, which he alleges he 
 paid. The proof given Ijy the complainants certainly establishes the 
 original trust, and that by the consent of the cestui que trud^^, the 
 original property has been exchanged for the slaves in the defendant's 
 possession, and that in the slaves Sylvia and her increase and Yirgil, a 
 part of the property thus substituted, they have given the defendant, 
 Mrs. Saxon, an estate for life ; and so far, there is no discrepancy 
 between the proof and the charge contained in the bill. In answer to the 
 defendant's claim of property, his deed surrendering all right to it, his 
 schedule made out and sworn to, in order to obtain a pension, and his 
 declarations to Maj. Duulap and Mr. Creswell, disclaiming any interest, 
 were plainly admissible. I am therefore satisfied, that notwithstanding 
 the generality of the statement in the bill, the case must be decided on 
 the proofs before the Court. 
 
 I think the Chancellor was mistaken in his conclusion, in supposing 
 that to entitle the complainants to a decree, it was necessary that a case 
 of trust created by contract, should be made out. As to the defendant, 
 Mrs. Saxon, this could never have been done, for her coverture might 
 have been a bar to any contract which she could have made. According 
 to my view of the case, the defendants are trustees in legal contemplation, 
 for the children of Edmund Craddock. They were certainly the owners 
 of the slaves, Reuben and Dave, in August, 1815, when they exchanged 
 Dave with Clarke for Sylvia, and agreed that her labor should be devoted 
 to the use of Mrs. Saxon for life. She has been in her possession ever 
 smce, and when it is asked how she was entitled to hold her, the answer 
 is plam— by the consent of her owners, she was entitled during her life to
 
 *73] COLUMBIA, JANUARY, 1833. 55 
 
 the possession of the said slave. This made her tenant for life with rever- 
 sion to the owners, her donors. From the proof, Reuben was sold b)- 
 Clarke, as the agent of the children of Edmund Craddock, and by the 
 consent of Mr. and Mrs. Saxon, out of the proceeds of his sale, Frank 
 and Sally were purchased. The first was originally *conveyed to a p^_ 
 daughter of. these defendants, Sarah E. Saxon, but she afterwards L '* 
 conveyed him to the complainant, Clarke, in trust for the sole and sepa- 
 rate use of Mrs. Saxon, during life, and after her death, for the use of the 
 children of Edmund Craddock. He was afterwards sold or exchanged 
 for Virgil, and he was conveyed absolutely to Clarke. But a trust 
 resulted from the fact that he was purchased with the trust fund. And 
 Clarke held him subject to the trusts created by the deed of Sarah E. 
 Saxon, conveying the boy Frank. Mrs. Saxon was, therefore, clearly 
 entitled to a life estate in him, and her and her husband's possession of 
 him, must be referred to that title. The girl Sally was conveyed to 
 Clarke, in trust, for the use of the children of Edmund Craddock and 
 Mrs Saxon. Her possession of that slave (or if she was exchanged for 
 another called Crees, as I suppose may be the case from the answer of 
 James Saxon,) would be the possession of a tenant in common, of » 
 chattel belonging to several. I have little doubt that it was intended 
 that she should have a life estate in this slave also ; but from the proof in 
 the case, we should be bound to conclude, that her only interest was that 
 of a tenancy in common with her children by Edmund Craddock. From 
 the statement in the bill, an inference might be raised, that she had a life 
 estate in this slave, as well as the interest in common, which the bill of 
 sale from Moore to Clarke as trustee, gives her. From these views it is 
 apparent, first, that James Saxon has no title to the said slaves ; secondly, 
 that Mrs. Saxon is entitled to a separate estate for life in the slaves Sylvia 
 and her increase and Yirgil — and that she has an undivided interest as 
 tenant in common with the children of Edmund Craddock, in the slave 
 Sail (or Crees) and her increase, and possibly a life estate in addition 
 thereto. It is clear that her possession, and consequently the possession 
 of her husband, must be referred to these titles. There can be no doubt 
 after the case of Swann v. Ligon, that a tenant for life is a trustee for the 
 remainder man, and the rule must be the same in favor of reversioners. 
 So, too, in equity, so far as the preservation of the whole property is con- 
 cerned, a tenant in common is a trustee for his co-tenants ; for his posses- 
 sion is their possession.* In respect to her separate estate for life, p^^^ 
 and her interest in common, it was necessary that Mrs. Saxon should 
 be a party ; her coverture could not be pleaded either in bar of the trust 
 resulting from the nature of her estate, nor could it be pleaded in abate- 
 ment of the suit, because she was the party in interest. It is true, she 
 could not by any act during coverture, create an express trust for the use 
 of others, but there is no doubt she may acquire and receive an estate in 
 either real or personal property, in fee or for life only. The legal conse- 
 quences resulting from the estate do not depend on her consent, they arise 
 by operation of law. The plea of coverture ought not, therefore, to have 
 been sustained. Under the consent entered into on the trial, and reported 
 by the Chancellor, the plea will be overruled, but she will be treated as if 
 she had answered. I have already said that the possession of James 
 Saxon must be referred to the title of his wife. She had a right to the 
 
 I
 
 5(5 SOUTH CAROLINA EQUITY EEPORTS. [*75 
 
 possession of Sylvia and her children and Virgil, for life ; and in Sally or 
 Crces she had a right in common, with the children of Edmund Crad- 
 dock, 'and possibly also an estate for life. He had no right at all, but 
 inasmuch as his wife, under her title, was entitled to the possession, he 
 was also entitled to participate in the possession. His possession was in 
 aider droit, and it follows, that he holds them subject to all the trusts to 
 which his wife's possession subjected her. His plea of the statute of limi- 
 tations cannot therefore avail him. For in the slaves in which his wife 
 had an estate, there can be no adverse holding by him, until the termina- 
 tion of her estate ; so, too, as to the slave in which she has an interest in 
 common, the statute cannot commence to run until an actual ouster. 
 
 It is admitted that the defendants intended to remove from the State, 
 and take the said slaves with them. This is such an act as may endanger 
 the ultimate rights of the complainants, ond according to the well estab- 
 lished principles of this Court, they are entitled to security from the 
 defendants, not to remove the property out of the State. 
 
 It is therefore ordered and decreed : that the Chancellor's decree be 
 wholly reversed, and that the defendant James Saxon, (and if Anne 
 ^^ ,-, Saxon should survive him, then that *she also,) enter into bond and 
 -• security to the complainants, before the commissioners in double 
 the value of the said slaves, that neither the said James Saxon and Anne 
 his wife, or either of them, or any other person, by their, or either of 
 their consent, shall remove or attempt to remove the said slaves, or any 
 of them, from and beyond the limits of this State. The defendants must 
 pay the costs. 
 
 Johnson, J., concurred. 
 
 Harper, J., absent. 
 
 Susannah Lyles vs. Ephraim Lyles, Administrator, and other children, 
 and heirs-at-law of Aromanus Lyles, deceased. 
 
 When the credit of a witness is impeached, by proof that he has made declarations 
 inconsistent with what he has sworn to : in reply to such evidence, proof of his 
 declarations on other occasions, consistent with what he has sworn to, is admis- 
 sible, (a) [*77] 
 
 The credibility of witnesses is a question for the jury. [*79] 
 
 When the presiding Judge had expressed to the jury his opinion of the evidence, is 
 not a ground for a new trial. [*80] 
 
 The object of an issue at law, is to satisfy the Chancellor as to the truth of certain 
 facts, and he may look at the report of the trial and collect what may satisfy his 
 conscience ; and if upon the whole, he is satisfied that justice has been done, he 
 may refuse a new trial, although evidence has been improperly rejected at law. 
 
 The value of rent can only be ascertained by the opinion of witnesses acquainted 
 with the lands; and where the Commissioner had fixed the value of rent, and 
 adopted ten per cent, per annum, as a scale of depreciation, so that at the expira- 
 
 (a) See 1 Mod. 282; 4 St. Tr. 613; Baker & Rowlson v. Arnold, Cain's Rep. 279; 
 Lessees of Wright v. Dekleyn, 1 Peters C. C. Rep. 199; 2 Hawks (N. C ) 183.
 
 *76] COLUMBIA, JANUARY, 1833. 57 
 
 tion of ten years no rent was charged, the Court beld it error, and ordered the 
 report back. [*84] 
 
 A co-tenant has the right of enjoyment to the extent of his interest, and is not 
 liable for rent, unless he cultivated to a greater extent than his interest, or unless 
 he has expelled his co-tenant, or keeps her out of possession. [*8G] 
 
 A trustee who has neglected to make annual accounts will be charged for negro 
 hire, at £10 for full, and £5 for half, task hands. [*87] 
 
 If one obtain possession by force or fraud, and forces another out of the adminis- 
 tration, he may be held to account at a higher rate ; the rule was intended to 
 apply only to cases where the party stands in an amicable relation as trustee, 
 guardian, executor, &c. and is a substitute for the regular annual account. [*89] 
 
 The defendants being in possession of negroes of which the plaintiff is entitled to 
 partition, and having employed them as their own, and some of the negroes 
 having been removed out of the State, the Court ordered the defendants to ac- 
 count for the value of negroes, by the appraisement, with interest thereon, instead 
 of the negroes themselves and their hire. [*90] 
 
 The defendants (distributees) made individually liable for what they had received 
 over and above their tlistributive shares. [*91] 
 
 On doubtful questions of evidence, the Court will not interfere with the decision qf 
 the Commissioner and Chancellor, [*91] 
 
 Costs are so much under the control of the Chancellor, that they are not, of them- 
 selves, regarded as the subject of appeal; it is only where the Appeal Court 
 reforms or reverses the Circuit decree, that it will reverse or modify an order on 
 the subject of costs, (a) [*92] 
 
 Bill for partition and account. The questions made in this case, and 
 the facts connected with them, are fully set forth in the following opinion 
 of the court. 
 
 Gregg, for the plaintiff. 
 
 Clarke and WDowell, for the defendants. 
 
 Johnson, J. The complainant is the widow of Col. Aromanus Lyles, 
 and the defendants, the Lyles', and Mrs. Moody, are his children, by a 
 former marriage. Col. Lyles intermarried with the complainant in Feb- 
 ruary, 1817, and died in the month of September in the same year, leaving 
 no child. or children by that marriage. He was possessed at the time of 
 his death of some real, and considerable personal estate, consisting prin- 
 cipally of negroes, and administration thereof was granted to the com- 
 plainant and the defendant, Ephraim Lyles, jointly ; but Ephraim Lyles 
 took upon himself, almost exclusively, the management of the estate ; and 
 the object of this bill was to obtain an account of the estate, *and r*i7>T 
 for partition amongst the parties, according to the act of distribu- ^ 
 tions. One of the grounds on which the defendant resisted complainant's 
 right to distribution was, that she was not the lawful wife of Col. Lyles, 
 but of Philip James, to whom it was conceded she had been beforemar-* 
 ried, and who, the defendants charged, was living at the time of her inter- 
 marriage with Col. Lyles, and an issue was sent down to the Court of 
 Law, to try the truth of that allegation. 
 
 On the trial of the issue, a verdict was found for the complainant, 
 establishing the fact of Philip James's death, and a motion was made 
 before the Chancellor on the Circuit, for a new trial, on the grounds : 
 
 (rt)M'Mullan ?^. Eldridge. Harp. Eq. Rep. 260; and lb. 201, contra; Lewis v. 
 Wilson, 1 M'C. Ch. Rep. 210 ; Pace v. Burton, lb. 351.
 
 58 SOUTH CAROLINA EQUITY REPORTS. [*77 
 
 first, that the presiding Judge at law, had excluded important and com- 
 petent evidence ; secondly, that the verdict was against the evidence ; 
 thirdly, because the presiding Judge expressed in his charge to the jury a 
 decided opinion, that there was not evidence enough to show that Philip 
 James was alive, at the time of the complainant's intermarriage with Col. 
 Lyles, The Chancellor overruled the motion, and decreed for the com- 
 plainant on that question, and directed an account of the personal estate ; 
 and the same grounds have been taken here, on a motion to reverse the 
 Chancellor's decree, and for a new trial. 
 
 1. The first ground arises out of the following state of facts. Henry 
 Davis, a witness on the part of the defendants, testified that he had seen 
 Philip James in 1817, near Leaf River, Mississippi, and that he was then 
 alive and well. Lucy Farr, a witness examined by the defendants, stated, 
 that she had been present when one Elizabeth Brown had enquired of the 
 witness, Henry Davis, if he had recently seen Philip James : at first, "he 
 did not appear to say he had," but after a private interview between 
 them, Davis said he had seen him in going to, or returning from Pearl 
 River. Elizabeth Brown told the witness, Mrs. Farr, that she was to be 
 well paid by the defendant, Ephraim Lyles, if she could find a person that 
 would swear that Philip James was alive, and that Davis would be well 
 paid if he had seen, or would swear that he had seen him within a certain 
 ^Ho-i length of time. This witness *did not believe that Davis had ever 
 -^ seen Philip James, but that he was prevailed on by Elizabeth Brown 
 to swear that he had. The defendants then offered Nathan Vincent, to 
 prove that he had heard the witness Davis say, in the latter part of the 
 year 1817, after his return from the Mississippi, that he had seen Philip 
 James. (The Chancellor, it is conceded, was mistaken in supposing that 
 it was the affidavit of James which was offered.) The presiding Judge 
 rejected the evidence thus offered, and the question is, whether it was, or 
 was not admissible. 
 
 , It does not seem to admit of any question, that the credit of a witness 
 may be impeached, by proof that he has made declarations inconsistent 
 with the facts to which he has sworn ; and on that principle,- a letter 
 written by a witness was admitted by Lord Kenyon, in De Sailley v. 
 Morgan, 2 Esp. Rep. 691, to contradict what he had sworn to on the 
 trial: and C. B. Gilbert is of opinion that in reply to such evidence, 
 proof of the declarations of the witness, on other occasions, consistent 
 with what he had testified, is admissible to show he is consistent with 
 himself (See Gilbert's Ev. 135.) Judge Buller is clearly of opinion that 
 it is not admissible, on the examination in chief, to support an unim- 
 peached witness, and doubts whether it is admissible in reply. Buller N". 
 **. 294 ; and this opinion is mentioned by Mr. Starkie, in his treatise on 
 Evidence, (Yol. 1, part 2, page 148-9.) 
 
 My own mind inclines very much to the opinion expressed by the Chief 
 Baron. _ The only reason urged against it is, that proof of inconsistent 
 declarations made by a witness does not add any thing to his credit, and 
 only tends to lessen the confidence in his credit or memory, and what he 
 has asserted is not entitled to more credit, than what he has sworn. But 
 it does not follow necessarily, that the witness who has testified to the 
 inconsistent declarations, has told the truth, or that he may not be mis- 
 taken. For example— suppose that the inconsistent declarations are
 
 *78] COLUMBIA, JANUARY, 1833. 59 
 
 proved by one witness only, and that twenty others testify, that in the 
 same day, and at other times and phices, and under every variety of cir- 
 cumstances, they had heard him make declarations consistent with what 
 he had sworn — would not that raise a well founded doubt, whether* r^^Q 
 the witness who proved the inconsistent declarations had sworn the u '" 
 truth or was mistaken ? These circumstances would certainly change the 
 character of the issue, by involving the credibility of the last, as well as 
 the first witness, and for that reason I incline to think the evidence ought 
 to have been admitted. 
 
 2. Philip James married the complainant about the year 1785, and in 
 a few years after, abandoned her and went away. Some time after, it was 
 reported and universally credited, that he was dead, and about 1800 or 
 1801 the complainant was married to Joseph Kennerly, a worthy and 
 very respectable man. He died about 1808; and shortly after, she was 
 again married to Cullen Fennel, who died about two years after ; and last 
 of all she intermarried with Col. Lyles in 1817 ; and during all this time, 
 amongst their acquaintances here, no one doubted the rumor of Philip 
 James's death was true. His mother, Elizabeth James, who was exam- 
 ined on the part of the complainants, states, that after he abandoned the 
 complainant, and before 1790, he had married another wife ; and she saw 
 him for the last time about that period. In 1812 she (the witness) 
 received a letter from his last wife, in which she stated that he died in 
 Tennessee two or three years before, and the truth of it was believed by 
 all his friends. The only doubt as to the death of Philip James, arises 
 out of the evidence of two witnesses examined for the defendants. Henry 
 Davis, the witness before spoken of, who states that he had seen him alive 
 and well near Leaf River, in Mississippi, in 1817 ; and James Vessels, 
 who testified that he had seen him on the Tombigby, in 1818, and that he 
 saw his son in 1817 or '18, who told him that he was still alive. ■ 
 
 A great number of witnesses (say fifty or more) have been examined on 
 both sides, as to the credit of these two witnesses, who are now both 
 aged men. Those who speak of Henry Davis, generally agree, that the 
 most implicit confidence ought not to be placed in what he would say in 
 ordinary conversation — to use the language of the witnesses, "he is now 
 as he always has been, given to romancing. " As many as fourteen, per- 
 haps more, think he is not entitled to credit on his oath ; and on the 
 other hand, perhaps as many think him *worthy of belief. Taken r^gQ 
 then the most favorable view, the credit of this witness is extremely 
 equivocal. He is precisely that sort of witness that one would be dis- 
 posed to credit or not, as his evidence might be favored by other cir- 
 cumstances of the case ; and when opposed by the presumption arising 
 from the evidence of Elizabeth James, and the facts stated by Lucy Farr, 
 whose credit is unimpeached, it is utterly unworthy of credit. ^ 
 
 The credit of James Vessels is still more exceptionable. The late Mr. 
 Solicitor Starke testified, that he knew him a soldier in the revolutionary 
 war when he was too young to have acquired a character, but that imme- 
 diately after he became notorious for the want of truth. In 1788 he was 
 committed for horse-stealing, at Ninety-six, and pardoned, and on his 
 cross-examination on this trial denied the fact. He resided at the time of 
 his examination in Georgia, and several persons who then (in 1826) resi- 
 ded in his neighborhood, testified that his character was infamous ; and
 
 60 SOUTH CAROLINA EQUITY REPORTS. [*80 
 
 on the other hand there were found amongst his general acquaintances 
 who had formerly known him, very respectable men, who testified their 
 belief that he was worthy of credit. 
 
 It would be uncharitable to conclude that every one who is suspected, 
 is unworthy of credit ; but I have always remarked, that there was very 
 great difficulty in procuring evidence to assail the character of a witness, 
 and unusually rare that a whole community should concur in denouncing 
 him. The more indulgent feelings of some, the partialities of others, and 
 the great disinclination of all, to place a fellow-creature under the ban of 
 public opinion, unless he is utterly lost to all sense of truth and honesty, 
 operate powerfully in his favor. It is not often that we find such a 
 weight of evidence against the credibility of witnesses, as exists here. 
 The Jury were, therefore, well warranted in discrediting them alto- 
 gether. 
 
 3. No instance has ever occurred in this Court, in which a new trial 
 has been granted on the naked ground, that the presiding Judge had 
 expressed to the jury, his own opinion as to the truth of the facts. On 
 the contrary, it has lieen said again and again, that it is his duty to aid 
 the Jury with his learning and experience in arriving at a correct 
 ^r,-i -1 *conclusion. There is, I believe, scarcely a considerate member of 
 -' the profession, who does not concede that public justice is promo- 
 ted by it. Every one of any experience must have remarked with what 
 difficulty an inexperienced jury arrive at conclusions, in cases depending 
 on contradictory and complicated evidence ; and how uncertain the 
 result, unless the Court in a greater or less degree, share the responsi- 
 bility and assist them in their conclusions; and notwithstanding the 
 improper exercise of this practice might innovate on the trial by the juiy, 
 my own experience satisfies me, that the occasional omission on the part 
 of the Judge to discharge this duty, is even more productive of a much 
 greater evil. There is then nothing in this ground. 
 . Having thus disposed of the grounds of the motion for a new trial on 
 the issue at law, it remains to determine what order the Court will make 
 upon it. The rule at law very clearly is that a new trial ought to be 
 granted, when the Court has rejected competent evidence ; and from the . 
 view which I have taken of the matter, it must be conceded that the evi- 
 dence of Nathan Vincent, tendered to prove declarations of Henry Davis, 
 consistent with what he had sworn, ought to have been admitted. But 
 this was an issue directed by the Court of Chancery. The object of it, 
 was to satisfy the Chancellor as to the truth of the fact whether Philip 
 James was or was not alive at the time of the complainant's intermarriage 
 with Col. Lyles. The verdict of the jury is the result of their opinion 
 upon that question. The opinion of the Law Judge is of great con- 
 sideration to the Chancellor. In this case he has not, as is usual, 
 formally reported it to the Chancery, but one of the complaints made by 
 the appellant, is, that he expressed his opinion too decidedly, and we are 
 m no doubt as to the opinion of both judge and jury. I think, too, upon 
 a dispassionate review of the facts as they are presented to us here, we 
 should, without hesitation, arrive at the same conclusion. The question 
 then is whether the Court will order a new trial, on the ground of the 
 rejection of the evidence of Nathan Vincent.
 
 *81] COLUMBIA, JANUARY, 1533. 61 
 
 As before remarked, the object of directing an issue at *law, is to 
 inform the conscience of the Chancellor ; and the authorities "-0110- ^ 
 rally agree that he may, in his discretion, grant or refuse a new trial on 
 account of the rejection or admission of proper or improper evidence on 
 the trial at law. In Pemberton v. Pemberton, 11 Yes. 52, the Ld Chan- 
 cellor Eldon says, he may look not only at the report of the trial at law, 
 but at the record of the suit in equity, and may collect what may satisfy 
 his conscience ; and if upon the whole, he is satisfied that justice has been 
 done, though he may think some evidence was improperly rejected at law, 
 he is at liberty to refuse a new trial. In the case of The Warden and 
 minor Cannons of St. Paul's, London v. Morris, 9 Ves. 169, the same 
 learned Chancellor asks the question — " Is the Court necessarily to grant 
 a new trial, if material evidence was rejected ? Or is it not at liberty, 
 supposing it material, to consider in what degree it is so ; and whether its 
 materiality is such that because it was rejected, a new trial must be granted, 
 even if the conscience of the Court is satisfied that the conclusion is 
 right ?" And he answers, "In all times, this Court in such a case as tliis 
 has exercised its discretion upon the whole case." He then enters into a 
 consideration of the question, whether the excluded evidence would or 
 would not have produced a different result, and a new trial was refused, 
 on account of the difficulties with which the case was surrounded in 
 making the necessary proofs. In Hampson v. Hampson, 3 Yes. & 
 Beame, 44, the case is put directly upon the question whether the ex- 
 cluded evidence would have produced a different result, and the Chancel- 
 lor being of opinion that it ought not, refused a new trial. 
 
 The infamy of the character of James Yessels, is such as to justify the 
 Court in putting his evidence entirely out of view, and I confess that in 
 my estimation, Henry Davis is not entitled to much more consideration. 
 His character at best is equivocal, and when we take into consideration 
 the circumstances stated by Lucy Farr, tending very strongly to show, 
 and from which she herself had drawn the conclusion, that he had been 
 suborned by Elizabeth Brown, I am constrained to say, that in ray judg- 
 ment, his evidence would *have been but little strengthened by the ^-^oq 
 questionable support it would have derived from the evidence of L 
 Nathan Yincent. Philip James had not been heard of in this country 
 for near forty years before the intermarriage of the complainant with 
 Col. Lyles — the defendants allege that he was then living, and it was in- 
 cumbent on them to prove it. The only evidence they offer of it, is of 
 two witnesses, whose general character and credibility is at best doubtful, 
 and that is opposed by the evidence of Philip James's mother ; and it is 
 very extraordinary if Philip James was still alive in 1817 or '18, that 
 some one witness of unimpeachable veracity could not in the course of 
 ten years' litigation, have been procured to prove it. The verdict of the 
 jury was founded on a belief of what these witnesses testified. The Judge 
 who presided at the trial of the issue at law, took the lead in it, and the 
 Chancellor has acquiesced, I do not think therefore, that the evidence 
 of Nathan Yincent, which we must assume was improperly excluded, can 
 vary the conclusion at which this Court would have arrived. The motioa 
 for new trial must therefore be refused. 
 
 On the part of the complainant, eleven different grounds have been 
 taken to reverse the decree of the Chancellor in relation to the matters of
 
 g2 SOUTH CAROLINA EQUITY REPORTS. [*83 
 
 account between the parties ; but before I enter upon the consideration 
 of these, it will be necessary to take a general view of the transactions 
 connected with the estate. The complainant was, herself, possessed of 
 a considerable estate, and shortly before her marriage with Col. Lyles, 
 she settled it on her daughter and only child, as stated in the answer of 
 Ephraim Lyles, with the knowledge and consent of Col. Lyles, and upon 
 an understanding that the children of each were to have their respective 
 estates, no children of that marriage being anticipated, being both old. 
 Before or about the time of their marriage, Col. Lyles executed a writing 
 in the form of a deed, purporting to be a marriage contract, in which he 
 disclaims and renounces all interest in her property or estate, and re- 
 serves the whole of his own for his children by a former marriage. It was 
 signed, however, only by Col. Lyles, nor was there any trustee to take, or 
 other third person named in it ; and by a decree of the Court of Appeals 
 in December Term, 1824, it was held that this deed was void. (Harper's 
 ^jj.-i Eq. Rep. *295.) Upon administration being granted, Ephraim Lyles 
 -J possessed himself of the principal part of the personal estate, and 
 took upon himself to determine that this paper was valid as a mar- 
 riage contract, and excluded the complainant from any participation in 
 the estate ; and he therefore made distribution of it between himself and 
 the other defendants, the children of Col. Lyles. Long before the inter- 
 marriage of Col. Lyles with the complainant, he had made a pai'ol parti- 
 tion of all his real estate, amongst his three sons, James, Aromanus, and 
 Thomas. He put James and Aromanus into the immediate possession 
 of the portions allotted to them reserving to himself a life estate in that 
 allotted to Thomas, consisting about 320 acres, on which he continued to 
 reside up to the time of his death. The complainant claimed partition of 
 the whole, but in the judgment before referred to, it was determined that 
 James and Aromanus were entitled to hold under their possession, and 
 that Thomas was not, on account of the absence of a corresponding pos- 
 session. Ephraim Lyles says in his answer, that on the complainant's 
 going on a visit to Lexington, he placed a tenant in the house, for the pur- 
 pose of keeping possession of it, but he does not believe that any violence 
 was offered to the complainant by the tenant. This is an answer to an 
 allegation in the complainant's bill, that the defendants turned her out by 
 violence. The Commissioner reports, that there were about 150 acres of the 
 land cleared and inclosed, and it is inferable from the circumstances, that 
 the other defendants acquiesced in the claim of Thomas Lyles, and he 
 took possession of it, and cultivated small portions of it from year to 
 year. It does not appear from any thing before the Court, under what 
 circumstances Thomas Lyles entered, or whether he had any agency in 
 putting in the tenant, or in any instance denied the complainant's right, 
 or obstructed her entry. 
 
 In this report, the Commissioner has fixed the annual rent of the better 
 quality of land, what he calls cotton land, at two dollars per acre, and the 
 inferior quality at one dollar per acre ; and establishing ten per cent, per 
 annum, as the scale of the deterioration of the land, he deducts that 
 amount annually, so that no rent is charged after the expiration of ten 
 *85] 'i'^^'^^- The Chancellor has so far corrected the report, as to *direct 
 that something shall be allowed, even after the expiration of that 
 period.
 
 *8-3] COLUMBIA, JANUARY, 1833. 63 
 
 The first ground of the complainant's appeal, complains that this 
 is error, and insists that the complainant is entitled to full rent for the 
 whole period. 
 
 The rule adopted by the Commissioner and considered as merely arbi- 
 trary, is cei'tainly not sustained by any principle. The soil of this country 
 varies from the extremes of fertility, to the most indomitable sterility, so 
 that the rule in one case is wholly inapplicable to another, unless the 
 quantity of the land, the mode of culture, and the crops raised, corres- 
 pond iu every particular — in every case, therefore, the value of rent can 
 only be ascertained by the opinion of witnesses competent to judge, and 
 acquainted with the land. In this country inferior land depreciates 
 rapidly, under the ordinary, indeed the almost universal, mode of culture 
 — even the provident planter does not so husband his land as to prevent 
 deterioration, and a reasonable abatement ought to be made on that ac- 
 count, but no general rule can meet the case, and the decreased value must 
 be ascertained in the manner mentioned. Land rent must be worth some- 
 thing, as long as it is fit for cultivation. This matter must therefore be 
 referred back to the Commissioner. 
 
 In connection with this subject, the questions are raised, who is liable 
 for rent ? And to what extent is it due ? 
 
 Independently of the concession made in the answer of Ephraim Lyies, 
 that in the absence of the complainant he had put a tenant into the house 
 to keep possession of it, there is nothing to show the fact, that the com- 
 plainant was ousted of the possession. Houston Goree, the only witness 
 who speaks on this subject, says that he saw one David Dunkin living in 
 the house, shortly after the death of Col. Lyles, who appeared to be the 
 proprietor of it for the time, and thinks he heard him say, that he was put 
 there to keep the complainant out. But it does not appear by whom he 
 was put in possession, or who authorized him to prevent her entering. 
 The answer of Ephraim Lyles would lead to the conclusion, that he did 
 it ; but he claimed no interest in it. The defendants are understood to 
 have *acquiesced in the claim of Thomas Lyles, and he is the only p^-g^ 
 person amongst the defendants who has had the use and enjoyment '- 
 of any part, and it is not probable that Ephraim Lyles would take upon 
 himself to incur the responsibility of turning out the complainant and put- 
 ting in Thomas Lyles, v/ho was as competent to act, and probably under- 
 stood his rights as well. 
 
 If Ephraim Lyles ousted the complainant of the possession, he is liable 
 for the annual rents to the extent of the complainant's interest, whether 
 the plantation was cultivated in whole or in part, or not at all, for to the 
 extent of her interest, she might have used it herself, or leased it to 
 another ; and if Thomas Lyles himself prevented the entry of the com- 
 plainant, or participated in the act of Ephraim Lyles, in ousting her of 
 the possession, he is liable to the same extent : but if on the contrary, 
 Thomas Lyles neither expelled, nor kept the complainant out, by any act 
 amounting to force, he is liable only to the extent to which he cultivated 
 the plantation, and not even in that case, to the complainant, unless he 
 cultivated it to an extent greater than the interest of himself and the other 
 defendants. As a co-tenant, he had the right to enter and use it to the 
 extent of his own interest, and with the consent of the other dclendants, to 
 the extent of their interest also. This did the complainant no wrong, it
 
 64 SOUTH CAROLINA EQUITY REPORTS. [*86 
 
 the one third part to which she was entitled was left unoccupied, and the 
 possession was not withheld from her. This has been repeatedly ruled 
 by this Court. The case of Volentine v. Johnson, ante, 49, during this 
 Term, is an instance. 
 
 The questions of fact are involved in so much uncertainty that I am 
 unable to form any satisfactory judgment in relation to them. The evi- 
 dence on this part of the case appears to have been taken as long ago as 
 1822, and it is apparent that about fourteen pages are wanting, and it is 
 not improbable that the doubt in which it is involved arises out of that 
 cause. These questions must therefore go back to be examined and 
 reported on by the Commissioner, in connection with the amount of 
 rent. (2 Eq. Rep. 499; 4 Eq. Rep. 270.) 
 ,::QHn In the old cases, some of which will be found in Equity *Reports, 
 
 '-J by Chancellor De Saussure, negro hire was rated at £10 for full 
 task hands, and £5 for half hands. In the prosperous times which suc- 
 ceeded the late war, and when produce sold for great price, the Courts 
 departed from this rule, and much higher prices were allowed in some 
 eases, but in the case of Moorman v. Foote and others, and Myers v 
 Myers, decided since the present organization of the Court, the rule was 
 resumed upon much consideration ; and my own experience and observa- 
 tion is, that it is as much as in general they are worth ; and I propose to 
 subjoin to this decree, an estimate upon which it is founded, (a) It never 
 was intended to apply, in those cases where the party accountable, came 
 to the possession and use of the slaves by force or fraud, but when he stood 
 in an amicable relation, as trustee, guardian, or executor or administrator, 
 bailee, &c., and is a substitute for the regular annual account which he 
 ought to make. The decree of the Circuit Court has allowed the com- 
 plainant for a part of the time $80, and for the remainder $70, for full 
 task male hands ; and $60 for a part of the time, and $50 for the re- 
 mainder, for full task females ; and in that proportion for inferior hands, 
 the young and the old. In the grounds of appeal, the complainant insists 
 that according to the evidence, even a greater sum than this should have 
 been allowed ; and it is very certain that the ordinary estimate of the value 
 of negroes's hire, sustained by innumerable instances, and actually letting 
 ;j;gg j to hire, greatly exceeds the £10 rule, and ^occasionally, the amount 
 -■ claimed by the complainant, ($85 for males, and $65 for females) 
 
 (a) [ The following is the estimate referred to.] 
 
 When the case of Moorman v. Foote and others, was under consideration, I took 
 some pains to correct my own limited experience and observation, by inquiries 
 amongst the most intelligent and successful planters of the middle and up-country, 
 as to the value of negro hire; and from the data thus collected, I have made the 
 subjoined estimate. The first object of the planter, is to raise a sufficient supply of 
 provisions and forage for family consumption, and no more. In the middle and up- 
 country, the usual habit is to clothe the negroes by the labor of the females, at 
 times when they can be conveniently dispensed with in the field ; and upon lands 
 of medium quality, two bags and an half of cotton of three hundred pounds per task 
 hand, is regarded as a good crop, taking a series of years together, and my own 
 experience is, that this is a high average. I have not been able to obtain a precise 
 estimate of the average price of cotton for the last ten or twelve years, and have 
 adopted 12^ cents, as approximating it, and as answering the purpose of illustration. 
 Overseer's wages is a usual item of expense, and if one is not employed, the planter 
 himself earns it and is entitled to it. This I have estimated at $10 per hand— cal-
 
 *88] 
 
 COLUMBIA, JANUARY, 1833. 65 
 
 but the result of the estimate which I propose to make, will show that the 
 hirer must lose largely at those prices. Possibly one who has a planta- 
 tion, stock and implements of husbandry, and which must remain unem- 
 ployed for the want of hands, unless obtained by these means, may find 
 his account in paying these prices, but pursued as a system it must prove 
 ruinous. The counsel for the complainant has however submitted, whe- 
 ther this is a case for the application of the rule, and if the Court should 
 be against him on that question,* he asks that the value of the per- r^.nn 
 sonal estate and interest upon it, should be substituted in the place •- 
 of the account for slave hire. 
 
 The complainant charges in her bill, that she was forced out of the ad- 
 ministration by the defendants. But this is not conceded in the answers, 
 nor is there any proof pointed out which warrants such a conclusion. 
 The witness Houston Goree, says that he saw "Ephraim Lyles and Mrs. 
 Lyles jerk out of the hands of the complainant with violence, some article 
 of clothing made up or not," but I cannot perceive how any unfairness in 
 respect to the administration of the estate can be inferred from this one 
 circumstance. The impression which it has made upon my mind, is that 
 it was a controversy between two old women about some article of cloth- 
 ing, probably a relict, in which Ephraim Lyles suffered himself to parti- 
 cipate, and no more. It is no disparagement to the complainant to sup- 
 pose that Ephraim Lyles, as a man, was more competent than herself to 
 administer the estate ; and nothing unfavorable to him can be inferred 
 from the circumstances that he took upon himself the burthen of the ad- 
 ministration. It is precisely what might have been expected, and what 
 occurs in almost every administration where a man and a woman arc 
 
 culating the wages of an overseer of 30 hands at $300. The account then stands 
 thus: 
 
 DR. 
 The planter, for 2^ bags cotton, of SOOlbs, each, at 12i cents, , . $93 75 
 
 CR. 
 Overseer's wages per hand, . . . . . . . $10 00 
 
 Land rent, say 12 acres, per hand, at $1 50, . . . . 18 00 
 
 Horse hire, per hand, ........ 5 00 
 
 Wear and tear of working tools and other implements of 
 
 husbandi*y, machinery, &c., . . . . . . . 5 00 
 
 1 blanket, $2 ; 1 pair shoes,iSl 25, 3 25 
 
 Taxes, .$-1 ; physician's bill, $2, 3 00 
 
 Bagging, rope and twine, §>1 per bale, , . . . . . 2 50 
 
 Freight, per bale, $1. ... ..... 2 50 
 
 Commissions on selling cotton, 2i cents pr. cwt., . . . . 2 29 • 
 
 $51 54 
 
 .$12 21 
 S»2 80 
 
 Negro hire, £10=$42 86 
 
 Against the planter, ""^ 
 
 Salt and other little articles of expense, which force themselves upon the humane 
 master, for which no certain estimate can be made, are intentionally omittod. and 
 in every instance I have intended to put the other expenses, founded on calculation, 
 something below their real estimate. If there is any thing omitted, suhsc,,uent 
 experience will bring it to light; the intention of these remarks being to call the 
 attention of the gentlemen of the law to the subject, with a view to establish a 
 settled rule, if that already established should prove to be incorrect. 
 YoL. 1—5
 
 66 SOUTH CAROLINA EQUITY REPORTS. [*89 
 
 joined ia the administration. Divested of the inferences which are at- 
 tempted to be drawn from these circumstances, the case is precisely that 
 contemplated by the rule, so far as E])hraim Lyles is concerned. It is 
 the case of an administrator in possession and liable to account. But the 
 case is still stronger. The evidence abundantly showSj'that there was 
 an understanding between Col. Lyles and the complainant, at the time of 
 their intermarriage, that their estates were to remain and be kept sepa- 
 rate, and that the children of each were to inherit their respective estates 
 at their death. The complainant was provident enough to secure her 
 own estate, and the paper executed by Col. Lyles was evidently intended 
 to secure his also. Philip James the complainant's first husband, was 
 confessedly alive down to 1809 or '10, after hermarriage with both. Ken- 
 ^Qr.-i nerly and Fennel, and his *deatli even then, is only proved by infor- 
 -■ mation received by his mother, who resided in North Carolina, and 
 who was probably wholly unknown to the defendants, and they were pro- 
 bably also ignorant of any clue which would lead to certainty. The 
 result has shown, that Ephraim Lyles acted indiscreetly in making distribu- 
 tion of the estate, before the rights of the parties under the deed executed 
 by Col. Lyles, and the fact of the death of Philip James, were judicially 
 ascertained ; and considering the doubt and uncertainty in which these 
 matters were involved, it would have been equally unwise in him to have 
 assumed the responsibility of letting the complainant into the partition. 
 Provident counsels would have suggested the propriety of postponing the 
 partition, until these matters were finally adjusted, and if that had been 
 done, the situation of Ephraim Lyles would have been precisely that con- 
 templated by the rule It does the complainant no wrong, that she should 
 be put precisely in the situation that she would have been, if the adminis- 
 tration had been conducted in the most proper and regular manner, and 
 for these reasons I am satisfied, that the case is one to which the rule is 
 strictly applicable. 
 
 An actual partition of the property of which Col. Lyles died possessed, 
 with an account of the rents issues and profits which it would have pro- 
 duced if prudently managed, is the strict measure of the complainant's 
 rights. But the defendants have made the personal estate their own by 
 the partition and use, and they have no right to complain, if they are 
 made to account for the value at the time they received it, with the in- 
 terest thereon, as a substitute for the hire of the negroes. The com- 
 plainant has thought proper to accept the value and interest, as a sub- 
 stitute for the property, and the issues and profits, and it does not appear 
 to me, that the Court can refuse to allow it. In this case there is an ad- 
 ditional reason — two of the defendants, it is represented, to have removed 
 to Mississppi, or some other of the western States with their negroes, so 
 that the Court has no means of making actual partition of these. Some 
 *9ll ^^ ^^^® negroes are said to have since died, and others may *have 
 been disposed of by the parties, and with respect to these, an ac- 
 count would be indispensable. It is therefore not only equally equitable 
 and just, but infinitely more convenient. The inventory and appraise- 
 ment of the personal estate, as far as that extends, must be taken as evi- 
 dence of value, as more likely to furnish the true value than any that could 
 be obtained at so distant a day. If there was property not included in 
 these, other evidence must of necessity, be furnished.
 
 *91] COLUMBIA, JANUARY, 1833. 67 
 
 Primarily, Epliraira Lyles, the administrator, is unquestionably lialjle to 
 the whole amount of the complainant's rights ; but it is claimed for the 
 complainant, that the other defendants should be decreed to be jointly 
 liable with him for the whole, on the ground that there was a conspiracy 
 amongst them, to defraud the complainant. I am unable to perceive in 
 the circumstances of this case, any feature that does not ordinarily occur 
 in the mal-administration of an estate. As administrator in possession, 
 Ephraim Lyles had at that time (before the act of 1824), the absolute 
 power of disposition ; and there is no principle in law or equity which 
 would make any one else liable for the manner in which he might dispose 
 of it, nor can I perceive how there could be fraud in the exercise of a 
 legitimate right. This claim is founded on the supposed insolvency of 
 Ephraim Lyles. If that be true, the defendants are clearly individually 
 liable, for what they may have severally received over and above their 
 distributive share of the personal estate. They have received that which 
 exequo et bono, belongs to the complainant, and upon clear principles of 
 equity, must account with her for it. 
 
 The sixth and seventh grounds of the complainant's motion,' complain 
 that the decree of the Circuit Court charges the defendant Ephraim Lyles, 
 with a less quantity of cotton than came to his hands, and that it charges 
 the complainant with the value of a small amount of personal property 
 which she retained, claiming it as a part of her own estate, and as having 
 been included in her settlement on her daughter. 
 
 "Both of these questions are mere matters of evidence, *and the p^Q^, 
 Commissioner and Chancellor have both arrived at the same con- ^ 
 elusion. The evidence is, at best, doubtful, and this Court does not feel 
 warranted in reversing their decision. 
 
 The right to order partition of the land, was evidently a mere omission, 
 and will be provided for in the decretal order. In the progress of the 
 cause, it seems that a survey was made of the lands, and it is alleged on 
 the part of Thomas Lyles, that a part of the land included in this survey 
 did not belong to Col. Lyles at the time of his death, or at any time 
 during his coverture with the complainant, but to himself The Court 
 have no means of judging of the truth of this allegation, but if there be 
 any thing in it, the question will necessarily and properly arise on the 
 return of the writ of partition. 
 
 The decree of the Circuit Court directs that the costs should be paid 
 out of the estate ; and the aomplainant appeals from that part of the de- 
 cree, on the ground, that the defendants ought to have been charged with 
 the whole amount of costs. 
 
 In Chancery, costs are regarded as discretionary ; not as the subject or 
 capricious discretion, but as the result of a reasonable and equitable de- 
 duction, from all the circumstances of the case, and are so much under 
 the control of the Circuit Court, that they are not of themselves regarded 
 as the subject of appeal ; and it is only in those cases where this Court 
 reverses or substantially reforms the decree of the Circuit Court, that it 
 assumes the authority to reverse an order made on the subject of costs. 
 Here, the principles upon which the Circuit Court decree proceeds, are 
 sustained throughout, and it is only in their application, that this decree 
 varies from it ; and on that ground, I question very much the propriety 
 of varying the order with respect to costs. Judging of the case a prion,
 
 68 SOUTH CAROLINA EQUITY REPORTS. [*92 
 
 this question is not free from difficulty. The circumstances before stated, 
 would seem to have rendered it perilous for the administrator to have 
 taken upon himself the responsibility of letting the complainant into a 
 ^ -. partition,* and without any fault on his part, a suit was almost in- 
 " '^ -I evitable. This state of things arises out of the misfortunes of the 
 complainant, Philip James's abandonment of her : and notwithstanding I 
 am strongly inclined to believe that the defendants have conducted this 
 litigation with rather more zeal and acrimony than became the relation in 
 whicli they stood to her, I cannot see my way so clearly, as to be certain 
 that the Chancellor was in error ; the order with respect to costs, must 
 therefore stand. 
 
 It was urged in the argument, but I do not observe it stated in the 
 grounds of appeal, that the sureties to the administration bond, who are 
 represented to be some of the other defendants, should be made liable for 
 any defalcation of Ephraim Lyles in the event of his insolvency, but they 
 are not charged in that character in the bill, and upon looking through 
 the whole proceedings, it is nowhere stated who they were. This would, 
 itself, be a sufficient reason for not making any order with respect to 
 them. The complainant is moreover a party to the bond, and I can well 
 conceive that questions might there arise, deserving more consideration 
 and attention than has been bestowed on them in the argument. No 
 order will be made, therefore, on that subject. 
 
 It is ordered and decreed, that a writ of partition do issue, to make 
 partition of the lands, tenements, and hereditaments whereof the said Col. 
 Aromanus Lyles was seized and possessed at the time of his death, 
 between the complainant, his widow, and the defendants, his children, 
 agreeably to the Act of Assembly in such case made and provided, and 
 that it be referred to the Commissioner to ascertain the rents and profits 
 of the said lands, and the person or persons liable to account for the 
 same, according to the principles of this decree. 
 
 It is further ordered and decreed, that the Commissioner do state an 
 account between the complainant and defendant, Ephraim Lyles, debiting 
 him with the value of the personal estate which came to his hands, to be 
 estimated at the value stated in the inventory and a]ipraisement of the 
 estate, filed in the Ordinary's office and exhibited with his answer, and 
 *94'' ^^^.^^"cting therefrom what has been *ascertained to have been paid, 
 -■ laid out and expended in the due course of administration. That 
 he set down to the credit of the complainant, joue-third part of the nett 
 balance, and deduct therefrom the amount of assets in the hands of the 
 complainant ; and that the said defendant Ephraim Lyles, do pay to the 
 complainant the balance of the said one-third part, with interest thereon • 
 from the first day of July, 1818. 
 
 It is also further ordered and decreed, that the said Commissioner do 
 state an account with each of the other defendants, debiting them seve- 
 rally with one-seventh part of the value of the slaves of the intestate, 
 stated in the inventory and appraisement aforesaid, and in default of pay- 
 ment of the sum due to the complainant, by the defendant Ephraim 
 Lyles, after notice of the final order of the Court, that the said other 
 defendants, John Lyles, James Lyles, Thomas Lyles, Aromanus Lyles, 
 Yulentme Lyles, and William Moody and wife, do pay to the complainant 
 s'.x-sevenths of the sum so as aforesaid ascertained to be due and owing
 
 *94] COLUMBIA, JANUARY, 1833. 09 
 
 to her severally, in proportion to the amounts they have respectively 
 recovered. 
 
 It is further ordered and decreed, that the costs be paid, one-third part 
 thereof by the complainants, and the remaining two-thirds by the defend- 
 ants. 
 
 It is also further ordered and decreed, that the decree of the Circuit 
 Court be reformed according to the principles of this decree, and that it 
 be affirmed so far as it is consistent with this decree. 
 
 O'JS'eall, J., concurred. 
 
 Harper, J. I concur, except as to the propriety of the Judge's 
 expressing to the jury his opinion on the facts. It is his duty to arrange 
 and sum up the evidence ; to point out to the jury distinctly the matters 
 of fact which they have to decide, and the evidence which bears on the 
 facts respectively. In doing this, it will sometimes unavoidably happen 
 that his opinion on the facts will be intimated to the jury. But still it is 
 the judgment of the country, and not the judgment of the Court, on 
 matters of fact, which *the institution of the trial by jury was r^q- 
 intended to secure. If a decided opinion be given by the L 
 Judge, the jury are too apt to rely on that, and to throw the responsi- 
 bility on him. The firm and honest exercise of his own judgment, is 
 what every citizen who is called upon to act as a juror, owes to 
 his country — a duty which he should be accustomed to perform. 
 
 John Peay and J. B. Pickett v. John M. Barber. 
 
 The general rule is, that a lapsed legacy of chattels passes under a general residuary 
 bequest, but the rule does not apply where the residuary bequest is of a particular 
 fund or description of property, or other certain resiiluuin.(«) [*y7] 
 
 Testator, by his will, bequeathed to his wife one-half of his negi-oes, household 
 furniture, stock, money, debts, &c. ; and to his sister's children (by name) "all 
 the rest of my negroes and their increase," and adds "all the rest of my pro- 
 perty not disposed of, I wish to be sold at public sale," and the proceeds to be 
 divided among the said children, and "the rest of my money on hand and owing, 
 I wish to be disposed of in the same manner," &c. ; the testator's wife died in his 
 lifetime, so that the legacy to her lapsed: Held, that the words "all the rest of 
 my property," must be understood as exclusive of the negroes, money and debts 
 due ; and as covering only the household furniture stock, movables and chattels 
 of that class of property ; that nothing else of the lapsed legacy but property of 
 this description passed under the residuary bequest, and that the negroes, money 
 and debts due, descended to the heirs general. £*98] 
 
 The defendant had been appointed, by an order of the Court, guardian 
 to his six minor children to whom a legacy had liecn left by the last will 
 and testament of Daniel Green, their uncle. The complainants were 
 securities to his guardianship bond, and the ol>jcct of this bill was to 
 compel an account, and to relieve the complainants, on account of the 
 mismanagement of the legacy. 
 
 (r/) Sinkler v. Sinkler, 2 Eq. Rep. 138; Sutton v. Sharpe, 1 Russ. 14G; Flcraing 
 V. Burrows, 1 Russ. 276.
 
 70 SOUTH CAROLINA EQUITY REPORTS. [*95 
 
 Daniel Green, by his will, gives in the first place, to his wife Nancy, 
 certain real estate, and then proceeds : " I also give and iDequeath to my 
 wife Nancy, as aforesaid, one-half of all the negroes I now possess 
 (fourteen in number) (not including a negro woman, which I have loaned 
 to my sister, Rebecca Barber, named Letty,) which said negroes she is to 
 take at the valuation of legal appraisers, having her choice of the negroes 
 as aforesaid, till she may have one-half of their whole valuation." 
 Again, " I further give to her, one-half of all my stock, of every descrip- 
 tion ; one-half of my household furniture, plantation tools, and movable 
 property of every sort and description, that may be upon the plantation, 
 to be valued as before mentioned, and is to have her choice of property, 
 until she may have one-half of the whole as aforesaid. I also allow her 
 one-half of the ready money I may have on hand, as well as one- 
 ^„„-| *half of all that may be owing to me, after my just debts have 
 -' been paid from the whole amount ; the whole of which land and 
 money and personal property, she has the right of disposing of, as she 
 may think meet and proper. " 
 
 The testator then gives certain specific legacies to sundry persons, and 
 the will then proceeds, " Item, I give and bequeath to" (the defendant's 
 six minor children by name) " all the rest of my negroes with their 
 increase," and prescribes the time and manner of distribution amongst 
 them, and then adds, " all the rest of ray property not disposed of, I wish 
 to be sold at public sale to the best advantage, and the money accruing 
 therefrom, be put to interest under the direction of my executors, and 
 that the same, both principal and interest, be equally divided between 
 the above named children, and to be received by them when they" are 
 entitled to receive their proportions of the negroes above alluded to ; 
 and all the rest of my money that is now on hand, or that may be owing 
 me, I wish to be disposed of in the same manner, except $500," &c. 
 
 The testator's wife Nancy died in his lifetime, and of course the legacy 
 to her lapsed. The defendant John M. Barber was appointed executor, 
 qualified and took possession of the estate, and some time aferwards was 
 appointed guardian of his minor children. His conduct not being satis- 
 factory to his securities in the guardianship bond, they filed this bill for 
 relief. On the hearing of the case at Chester, in 1831, it was ordered 
 (by Mr. Justice Johnson, sitting for Chancellor Johnston) that the defen- 
 dant should account before the Commissioner, and that his letters of guai'- 
 dianship be revoked unless he gave new securities, and that the complain- 
 ants on paying the sum reported to be due from the defendant as guardian, 
 should be discharged. Tlie case was again heard at July Term, 1832, before 
 Chancellor De Saussure, on exceptions to the Commissioner's report, and 
 the leading question then made was, whether the legacy of the personal 
 property to tlie testator's wife Nancy, sunk into the residuum of the estate, 
 *9*r'l ^^^ *passed under the bequest of " all the rest of my property" to 
 the children of the defendant, or descended, as in a case of intes- 
 tacy, to his heirs general. The Chancellor held that it passed under the 
 bequest, and from this decree an appeal was taken. 
 
 Gregg and Clarke, for the plaintiffs, cited 1 Sup. to Yes., Jr., 189, 
 note 6; 18 Ves. 4(56 ; Ambler, b11 ; 2 Jacob & Walker, 405. 
 
 De Saussure and Peareson, contra, referred to 1 John. Ch. 498 ; 2
 
 *9T] COLUMBIA, JANUARY, 1833. 71 
 
 Mad. 82; 8 Ves. 24; Roberts v. Cook, 16 Ves. 451; Ambler, 645- 
 2 Roper on Leg. 48^,490; 4Eq. Rep. 459; 4 Yes. 166, 708, 802; t lb' 
 389 ; 8 lb. 12. 
 
 Johnson, J. The general rule very clearly is, that a lapsed legacy of 
 chattels passes under a general residuary bequest, not (as is said by tlie 
 master of the Rolls, Sir William Grant, in Cambridge v. Rous, 8 Yes. 
 25) in consequence of any direct or expressed intention ; for it may be 
 argued in all cases, that particular legacies are separated from the 
 residue, and that the testator does not mean that the residuary legatee 
 should take what is given from him, for he does not contemplate the 
 case. The residuary legatee is to take only what is left, but that does 
 not prevent the right of the residuary legatee ; but the testator is sup- 
 posed to give it away from the residuary legatee, only for the sake of the 
 particular legatee. It is therefore giving effect to the intention of the 
 testator. It is true, that the English cases go very far to favor the 
 residuary legatee. There, the undevised residuum went to the executor, 
 and it was most apparent that the construction was often strained, to 
 prevent that consequence. Here, there is no such necessity for perverting 
 the meaning, as the law makes distribution of the residue. But even 
 there the rule does not apply, where the residuary bequest is of a particu- 
 lar fund or description of property, or other certain residuum, which I 
 think may be fairly deduced from this will. The case of Bland v. Lamb, 
 2 Jacob & Walker, 399, is an example. The residuary bequest there, was 
 in the words — *" Anything I have forgot, I leave at the disposal of p-^qq 
 Mrs. Bland of Isle worth," and it was held that a legacy subsequently '- 
 left to him by a relation, did not pass under this bequest ; and the Lord 
 Chancellor Eldon remarks (page 405) " that after the cases which had 
 been referred to, there could be no doubt that a gift of the residue may 
 have a limited operation, although the g nei*al doctrine of the Court is, 
 that if a person gives all the rest of his personal estate or property, such 
 a gift will pass not only that which he then has, but that which may 
 become his property." The Attorney General v. Johnstone, Ambler 
 517, furnishes another example of this sort. Indeed the proposition is 
 so palpable, that it admits, in the abstract, of no doubt. All the diffi- 
 culties connected with it have arisen in the application. In determining 
 whether, in the particular case, the bequest was of a general or particular 
 residuum. 
 
 In the case under consideration, the intention of the testator is 
 expressed, in the introductory clause of the will, in the following words : 
 " And as to what worldly substance it has pleased God to bless me with, 
 it is my will and wish that it be disposed of in the manner fallowing," 
 &c., — and this circumstance is much relied on in all the cases where it 
 exists, to show the intention of the testator not to die intestate as to any 
 part of his estate, and is certainly entitled to weigh mucii in a doul)tful 
 construction ; but, as much as the Courts lean in favor of such a con- 
 struction, it has never been made to supply the place of an actual 
 bequest. Take, for example, the case of a will where there is no residuary 
 clause, and the whole estate is not specifically disposed of; there the 
 general intention cannot prevail, on account of the uncertainty who the 
 testator intended should take. So in the case of a speciQc residuary
 
 72 SOUTH CAROLINA EQUITY REPORTS. [*98 
 
 bequest of all the rest aud residue of cash on baud, where there are other 
 chattels not disposed of. In the case of Bland v. Lamb, before cited, the 
 testator, after alluding to the state of his health, states that he takes this 
 method of showing how he would have his small property disposed of: 
 and the Lord Chancellor, conceding that these terms were broad enough 
 to pass all the property he had, held that subsequently acquired property 
 did not pass under the residuary clause. 
 
 ^QQ-j *The question then is, whether by the terms, " all the rest of my 
 -J "property," the testator meant the general residuum of his estate, or 
 the residuum of a particular description of property. 
 
 There can be no question, that the term "property," as was said by 
 Lord Mansfield, in Hogan t'. Jackson, Cowp. 299, when unaifected by the 
 contract, is sufficient to cover all that the testator was worth ; but upon 
 construing it with reference to the other provisions of this will, I think 
 it will appear that the testator did not intend to use it here in that general 
 sense, but limited it to a particular description of property. 
 
 The word "property" occurs in the bequest to the testator's wife, in 
 connection with his stock, plantation tools, and household furniture, and 
 in that instance, is evidently and expressly limited to whatever chattels 
 he might have on his plantation, not falling within the description parti- 
 cularly expressed. And again, of that " property," she is to have her 
 choice. In this instance, too, it is apparent that it was not intended to 
 include negroes on the plantation, or money on hand, or due and owing ; 
 for these are all independently and specifically disposed of. -So, too, in 
 the residuary clause, after the general bequest of all the rest of his pro- 
 perty, the testator gives the remainder of the money on hand, and the 
 money due, excepting §500, to the defendant's wards ; and if he had in- 
 tended to use the word " property," in its unqualified sense, that was un- 
 necessary. He directs too, in the residuary clause, that all the rest of 
 his p?'ope?'/y should be sold at public sale. JNJouey, or debts due, or 
 other securities for money, may be the subject of public sale ; but 
 that is very much out of the usual course of business, and it would never 
 enter into the mind of any one, that by direction to sell property, the 
 testator meant money or choses in action, for the obvious reason, that a 
 sale could not essentially change the quantity or character. Besides, the 
 testator reserves $500 out of the cash fund, for another purpose. It is 
 clear, therefore, that the testator did not intend to use the term " pro- 
 perty," in the unlimited and nnqualified sense, in which it is generally 
 *1001 ^^^^^^'^<^^ ; find the ^inquiry is, to w^hat did he intend to limit it. 
 The solution may be found, I think, in the use he makes of it in 
 the bequest to his wife. In that clause of the will, it is, as before re- 
 marked, evidently used in a sense exclusive of negroes and money, and to 
 enlarge live stock, household furniture and plantation tools, so as to in- 
 clude all other movables about the plantation, not falling within those 
 descriptions. The same thing precisely, occurs in the bequest to the 
 defendant's children and wards, " I give and bequeath to [them] all the 
 rest of ray negroes ;" in effect specifically those not before bequeathed, 
 and in the same clause he also gives to them all the rest of his money on 
 hand, or that may be due him. The words " all the rest of my property," 
 must therefore be understood as exclusive of the negroes, for all the rest of 
 the negroes had been before disposed of. Money and debts must also
 
 *100] COLUMBIA, JANUARY, 1833. 73 
 
 be excluded, because these also are expressly disposed of; and for the 
 further reason that they are not the subject of sale. The word property, 
 which occurs here, is then to be understood in the sense in which it is 
 used in the bequest to his wife, and only as enlarging the particular stock, 
 household furniture, and farming tools, so as to cover whatever else of 
 personal chattels belonging to that class of property, which might be upon 
 the testator's plantation, or used there. It follows, that nothing else of 
 the legacy to the testator's wife which lapsed by her death, but i)roperty 
 falling within this description, passes under this residuary bequest to the 
 defendant's wards, and that so much of the legacy to her, as consisted 
 of negroes, money on hand, and debts due, must pass as chattels de- 
 scended to the testator's heirs general, and is distributable under the act 
 of the Legislature. In this respect, therefore, the decree of the Circuit 
 Court must be reversed. 
 
 It is understood that the defendant's wards (his children) will be en- 
 titled to a distributive share of the chattels descended, being amongst the 
 next of kin to the testator. If that be true, the defendant, in the state- 
 ment of his accounts as guardian, must be charged with the amount of 
 *their interest in them, and the issues, income and profits arising r-^-, ^v, 
 therefrom. L 
 
 In other respects, the decree of the Circuit Court is affirmed, and it is 
 ordered and decreed, that the said decree be reformed, according to the 
 principles of this decree. 
 
 O'ISTeall and Harper, Js., concurred. 
 
 Wm. S. SivnTH V. Jas. W. Maxwell, Executor of George P. Smith. 
 
 Settlements in pursuance of marriage articles, must not always be made according 
 to their legal import, but in conformity with the intention of the parties. [*103] 
 
 S-, before marriage, executed articles stipulating to make a settlement of his 
 whole estate, for his wife, during his life, and at his death to be equally divided 
 between her and the children of the marriage : the wife died, her husband and one 
 child her surviving : on a bill filed by the child, to carry the articles into effect : 
 Held, that he was only entitled to the moiety of the property secured by the 
 articles. [*104] 
 
 The bill in this case, states that George P. Smith, on the Gth of April, 
 1813, in consideration of a marriage then about to be had and solemnized, 
 between himself and one Rebecca J. Clayton, executed an agreemeut of 
 which the following is a copy. 
 
 "South Carolina — Barnwell District. 
 
 "Know all men by these presents, that in consequence of a marriage 
 about to take place between rayseJf and Rebecca J. Clayton, I do agree 
 to make and sign a legal marriage settlement of the following property, 
 to wit: Selah, Betty, Cffisar, Sylvia, Sambo, Ansel, Mary, Hannah, 
 Hester and Sarah; which said property I do hereby deliver unto 
 Joseph Bellinger, Esq., as trustee for the said Rebecca J. Clayton, and 
 do hereby bind myself under the penalty of five thousand dollars, to exe- 
 cute the marriage settlement of the above mentioned property, as also
 
 74 SOUTH CAROLINA EQUITY REPORTS. [*101 
 
 two hundred and thirty-eight acres of laud, lying in Colleton District, to 
 the said trustee, within three months from the date hereof, upon the fol- 
 lowing conditions, viz. that the property is to remain her's during my 
 natural life, and at my death to be equally divided between her and all 
 *lf\oi the *children issuing from said marriage. In witness whereof I 
 -' have hereunto set my hand and seal, this 6th April, 1813. 
 
 [Signed,] 
 Signed, seakd^and deUvered in the| (^eORGE SMITH, [l. s.] 
 H. D. Duncan, Sarah Baxter." ) 
 
 The bill further states, that the said marriage was solemnized, and the 
 said Rebecca subsequently departed this life, leaving her husband and the 
 complainant, (the sole issue of the marriage) surviving — that the said 
 George P. Smith afterwards contracted a second marriage, and has lately 
 departed this life, leaving a widow and several children by his last mar- 
 riage, having first executed his last will and testament containing the fol- 
 lowing clauses, " I do give to my beloved wife Sarah Smith, this plantation 
 I live on, and the other adjoining to it, all the cattle and hogs, horses, and 
 all the household [furniture] rights and credits during her life, and after 
 the marriage settlement, George P. Smith and his first wife's property 
 to be made good, and the negroes that was deeded, to my son William. 
 I also deed a certain negro girl to my wife, named Sarah, as her own 
 property till her death, and then she is to go to my daughter Caroline" 
 — that the said George P. Smith appointed the defendant executor of 
 his last will and testament, who has assumed the execution thereof, and in 
 that character has taken possession of the slaves named in the said agree- 
 ment, and their issue, except two whom the testator in his lifetime sold 
 or disposed of, contrary to the said agreement. The prayer of the bill is, 
 that the defendant may answer, make a discovery of the testator's estate, 
 and particularly of the slaves mentioned in the agreement, and that it 
 may be carried into effect. 
 
 The answer admits the execution of the agreement, which comprised 
 the whole of the lands and negroes of which the said George P Smith 
 was seized and possessed at that time — that the wife departed this life 
 many years ago, leaving her husband and the complainant (the sole issue 
 *1031 °^ ^^^^ marriage) surviving — that George P. Smith *subsequently 
 -' married a second wife, by whom he had three children, all of whom 
 survived him — that after the death of his first wife, Geo. P. Sniith sold 
 three of the slaves included in the agreement, for which the defendant in- 
 sists his testator's estate is not accountable, or for rent or hire. The an- 
 swer further states, that the said agreement was intended as a provision 
 for the wife and her issue, in the event of her surviving him, which event 
 did not occur, and submits whether under a fair construction of the agree- 
 ment, the complainant is entitled to more than one-half of the property 
 therein mentioned. The defendant alleges that he is, and has been 
 ready and willing to do whatever is just and proper in the premises, 
 denies all combination, &c. 
 
 The cause was heard on the bill and answer, before Chancellor De 
 Saussure, February, 1831, who ordered and decreed "that the com-
 
 *103] COLUMBIA, JANUARY, 1833. 75 
 
 plainant is entitled to the whole of the property comprised in the mar- 
 riage articles, and that the defendant do deliver up the same to him." 
 
 From this decree the defendant appealed, insisting that on a fair and 
 equitable construction of the mari'iage articles, the complainant is not 
 entitled to more than half of the property in question ; and he moves 
 the Court of Appeals to modify or reform the said decree accordingly. 
 
 Patterson, for the appellant. 
 
 Bellinger, contra. 
 
 Harper, J. It is said by Atterly in his Treatise on Marriage Set- 
 tlements, that " articles being often carelessly drawn, settlements in pur- 
 suance of them must not always be made in the very words of the articles, 
 nor even according to their legal import and operation ; for if that was 
 the case, they would often be of little avail. But they must be made in 
 conformity with the intention of the parties, or at least as near to it as is 
 consistent with the rules and principles of law. In short, in framing set- 
 tlements in pursuance of articles, the articles must be considered merely in 
 the light of instructions." In the case *of Randall v. Willis, to r^ir^A 
 which he refers, where, by articles before marriage, the husband '- 
 had agreed to settle all his personal estate, of what kind or nature 
 soever ; this was held to include only the personal estate he should have 
 at the time of his death, giving him the power to dispose of his personal 
 estate, in good faith, during his life. The Chancellor says, " If a formal 
 deed was executed before marriage, containing such a covenant, it is im- 
 possible I could do any thing with it. But an article is only the head 
 and minute of an agreement, not to be followed literally." Here the plain 
 and literal import of the terras which related to the personal estate he 
 possessed at the time of signing the articles, was departed from, on ac- 
 count of the unreasonableness of making " every chair and stool, the pro- 
 visions in the house, &c., the subject of settlement." It is evident that 
 much greater latitude is allowed in executing marriage articles, and 
 adapting their provisions to the exigencies of a family, than in construing 
 wills and other instruments. If a settlement were executed in the words 
 of the articles we are considering, the effect would be to give the wife an 
 estate, for the life of her husband, in the whole of the property, with a 
 vested remainder to herself in one moiety, which, although slie might die 
 in the lifetime of her husband, would be transmitted to her legal repre- 
 sentatives. But many absurd and unreasonable consequences would follow 
 such a disposition which we cannot suppose the party to have intended. 
 It is admitted that the whole of the property included in the articles, was 
 the property of the husband, and constituted his whole estate. Under 
 a settlement thus executed, in the event which has happened of the wife's 
 dying first, the wife's estate per aider vie and her moiety in remainder, 
 would be distributable on her death, her husband taking one-third of the 
 the life estate, and a sixth of the whole estate in remainder, and the com- 
 plainant taking one moiety in remainder by purchase under the settlement, 
 and two-thirds of his mother's interest, by transmission from her. ^ It is 
 unreasonable to suppose that a man could have intended to leave himself 
 such "^scanty provision out of his own property. If the wife how- r*]^Q5 
 ever, had died childless, leaving her husband surviving, then two
 
 76 SOUTH CAROLINA EQUITY REPORTS. [*105 
 
 thirds of her life estate, and two-thirds of her moiety, or one-third of the 
 whole estate, in remainder, would have gone to her next of kin, strangers 
 to the husband. It is not be supposed that a man intends thus to give 
 his property to strangers during his lifetime. The words of the articles 
 are " that the property is to remain her's during my natural life, and at 
 my death to be equally divided between her and all the children issuing 
 from the said marriage." Though these words, if used in a settlement, 
 would have given the wife a vested remainder, yet this is by giving them 
 a technical and artificial sense. To the popular understanding when it 
 is said "the property shall be her's during my natural life," there will be 
 implied some idea of her living during his lifetime to enjoy it, and when 
 it is given to her at his death, some condition of her being alive to take 
 it. In the natural and popular sense, a gift to her, imports a benefit to 
 herself, which she is personally to enjoy. At all events, the words are 
 capable of such a meaning, and certainly it is the more reasonable and 
 probable one. The general objects of a marriage settlement, are a pro- 
 vision for the wife for her life, and for the issue of the marriage. These 
 are effected by the construction I have given the articles. 
 
 It was suggested that the word her''s, was inserted by mistake, and that 
 the provision really intended, was that "the property is to remain mine 
 during my life." This may be, but there is no evidence of it. If it was 
 to remain her's, I suppose the husband expected to have the enjoyment of 
 the income. If the construction I have given the articles be correct, then 
 the provision for the wife was, that the whole of the property should be 
 her's during the joint lives of herself and her husband, and if she should 
 survive him, a moiety to her absolutely, without any disposition of that 
 portion in the event of his surviving her. The property having been the 
 husband's, every thing that was not disposed of remained his, and having 
 survived his wife, the moiety given to her in remainder, *on con- 
 tingency, became absolutely his, and is disposed of by the will. 
 The complainant is therefore entitled only to the moiety of the property 
 secured by the articles, and to an account of the rents and profits, from 
 the time of his father's death. 
 
 It is therefore ordered and decreed, that the decree of the Chancellor 
 be modified according to the views herein expressed. 
 
 Johnson and O'Neall, Js., concurred. 
 
 *106] 
 
 George Hillegas and Wife, and others, vs. Thomas L. Hartley. 
 
 It is not necessary to the validity of recording, that the probate of the witness 
 should be endorsed on the deed. — (per Chancellor De Saussure.) [*107] 
 
 Where a feme covert joins her husband in a conveyance, and renounces her inheri- 
 tance according to the act of 1795, the renunciation is not "complete and legal" 
 until recorded ; and if it has not been recorded within the time prescribed by the 
 Registx-y Act (1785), it is absolutely void. [*110] 
 
 Bill for partition of a tract of land, of which, as the plaintiffs allege, 
 Mary Hartley, deceased, the defendant's wife, died seized, and in which 
 they claim an undivided interest as her heirs at law, .she having left no
 
 *i06] COLUMBIA, JANUARY, 1833. 77 
 
 issue. The facts set forth in the answer, and which were in evidence are 
 these : 
 
 Mary Hartley being seized in her own right of the land in question, on 
 the 12th of Februrary, 1825, joined her husband in a conveyance thereof 
 to Wm. J. Reese, and on the 28th of February, 1825, made a renuncia- 
 tion of her inheritance on the deed, in due form, before a justice of the 
 quorum. The deed and renunciation endorsed on it, were recorded in the 
 office of register of mesne conveyances for Sumter District, (where the 
 land lies, and the parties lived,) on the 28th of October, 1826 : there was 
 no probate of a subscribing witness on the deed, nor any evidence that it 
 had been proved before recording, Mrs. Hartley died soon after execu- 
 ting the deed and renunciation to Reese, and before they were re- 
 corded. 
 
 The question made in the case, was, whether the deed *from the p, ^ ^ 
 defendant and his wife to Reese, was such a perfect release of her L -^^^ 
 inheritance as passed the estate. For the plaintiffs, it was contended that 
 the conveyance not having been legally recorded, was void, and that con- 
 sequently they were entitled to a moiety of the estate. They did not, 
 however, seek to disturb the sale, but only claimed their shares of the pur- 
 chase money, which the defendant had received. 
 
 The case was heard at Sumter, February, 1832, and the following 
 decree pronounced. 
 
 De Saussure, Chancellor. All the forms prescribed by the statute 
 have been complied with. But it is argued that there is no probate of 
 the deed, actually attested and endorsed, without which it could not be 
 legally recorded. 
 
 I am not sure that it is necessary to the validity of a deed directed to 
 be recorded, that the probate should be endorsed. The officer entrusted 
 with that power and duty, may swear the subscribing witnesses to the 
 deed, and satisfy his own mind, without endorsing the attestation — cer- 
 tainly the statute we are considering does not prescribe it ; it is, however, 
 generally done, and it is better done. But to make the endorsement of 
 the attestation by the officer, a ground to invalidate the deed, is to make 
 the act of the parties depend not upon their performance of what is 
 required of them to be done, but upon the omission or neglect of a third 
 person, the officer, in whom the country have placed confidence. 
 
 I am strongly inclined to think that as the duty of recording is put on 
 that officer, it will be presumed when he has recorded a deed, that all was 
 done, which was necessary to be done, to perfect the instrument and enti- 
 tle it to record. 
 
 Another objection is, that the deed and renunciation not having been 
 recorded till after the death of the wife, the recording afterwards is too 
 late. 
 
 This is a grave objection, and may have a most extensive operation. 
 The statute does not limit the time luithin which the wife is to declare 
 her consent to the release of her interest. It is definite, except that it 
 must be after seven days. 
 
 *But the renunciation shall not be considered as being complete r:iciQQ 
 or legal, until the same shall be recorded in the office of mesne L 
 conveyance. It may be done in three months or three years. Xow sup-
 
 78 SOUTH CAROLINA EQUITY REPORTS. [*108 
 
 pose in the case of a marriage settlement, which the law directs to be 
 recorded within three months, the wife dies in one month, and the deed is 
 recorded after her death, and before the expiration of the three months, 
 would that avoid the deed ? — assuredly not, yet the recording is essential 
 to give validity to the deed. 
 
 I think this reasoning applies to the case before us. It may be 
 recorded at any time, and when recorded, it has full force and effect. It 
 is an act not to be done by the wife — her consent to the recording is not 
 essential. 
 
 She has done all that was necessary for her to do — and the recording is 
 good in my jndgment, though not made till after her death. 
 
 It is therefore ordered and decreed, that the bill be dismissed. 
 
 From this decree the plaintiffs appealed, on the grounds taken below. 
 
 De Saussure, for the appellants. 
 Haynesioorth, contra. 
 
 Harper, J. We propose to consider more particularly the first 
 ground of the complainants' motion. The question is one of considera- 
 ble doubt and difficulty ; but from the best view we have been aVjle to 
 take of it, we have come to a different conclusion from that of the Chan- 
 cellor. The case of Gough v. Walker, 1 N. M'C. 469, which was prin- 
 cipally relied on by the complainants' counsel, did not arise under the act 
 of 1795, which is now in question, but under that of 1731, (a) providing 
 that a married woman freely and voluntarily joining her husband in a con- 
 veyance, and "acknowledging the same before the Chief Justice before 
 the time being, or before any persons thereunto by him authorized, and 
 certified by the said Chief Justice, and recorded in the office of pleas, 
 *in9l ^^^^'^ ^^ deemed as effectual and valid in the law, to all *intents 
 ^ and purposes whatsoever, as any fine passed in due form of law in 
 his majesty's Court of Pleas at Westminster, for conveying of lands in 
 Great Britain." P. L. 132. As was truly observed in the case of Gongh 
 and Walker, the object of the act was to establish a mode of proceeding 
 similar to that by fine in great Britain. That was a proceeding by ficti- 
 tious suit in Court, and of course a matter of record. Blackstone after 
 speaking of the commencement of the suit, the licentia concordandi, and 
 the concord observes " This acknowledgment must be made either openly 
 in the Court of Common Pleas, or before the Lord Chief Justice of that 
 Court, or else before one of the Judges of that Court, or two or more 
 Commissioners in the country, empowered by special authority called a 
 writ of dedimus potestatem.''^ 2 Bl. Com. 351. "If there be any feme 
 covert among the cognizors, she is privately examined whether she does it 
 willingly and freely, or by compulsion of her husband." 
 
 " By these acts all the essential parts of a fine are completed, and if 
 the cognizor dies the next moment after the fine is acknowledged, provi- 
 ded it be subsequent to the day on which the writ is made returnable, still 
 the fine shall be carried on in all its remaining parts." That is to say, the 
 note of the fine, and foot of the fine, of which indentures are made, and 
 
 (a) The Act of 1731 is entirely superseded by .that of '95; at this day few, if any 
 cases, can arise under the former. R.
 
 *109] 
 
 COLUMBIA, JANUARY, 1833. 79 
 
 delivered to the parties, are entered. This seems to be equivalent to the 
 entering up of final, after interlocutory judgment in other cases, and 
 might, I suppose, be done at any time within the year and day. If from 
 any cause it should be neglected for a long period, it is probable that it 
 could not be done without a rule to the parties, to show cause against it, 
 or if the parties were dead, to their representatives, and after a great 
 lapse of time would not be done at all. The Court, however, in Gough 
 V. Walker, determined that where a renunciation of dower had not been 
 recorded during the lifetime of the husband, it could not, under the act of 
 1731, be recorded afterwards. 
 
 The case seems to me to be stronger for the complainants under the act 
 of 1795. The act directs, that any ^married woman may renounce r^j-i ^^ 
 her inheritance, by going before a judge or justice, and submitting L 
 to an examination, of which a certificate shall be made in the prescribed 
 form ; "and such renunciation shall not be considered as being complete 
 or legal, until the same shall be recorded in the oHice of mesne convey- 
 ances, or office of the Clerk of the County Court, in the District or 
 County where the land lies." 2 Faust. 6. This seems to deprive the pro- 
 ceeding of any analogy to a proceeding of record in Court, and to make 
 it purely a mode of conveyance. What is the meaning and effect of the 
 words "shall not be considered as being complete or legal ?" I cannot 
 imagine any other than that the renunciation shall have no operation or 
 effect whatever, even between the parties. W^hatever reasons may have 
 governed the legislature in making the enactments, the words are too 
 plain to admit of question. The security and protection of the woman 
 must have been in some way the object of the provision. 
 
 It was argued, however, that the act fixes no time within which the 
 recording shall take place, and that it may therefore bp at any time short 
 of a prescriptive bar. If the act of 1795 had said nothing about record- 
 ing, I think the certificate would come under the general provision of the 
 act of 1785 on the subject of recording conveyances of land. This is a 
 mode of conveying land. The certificate of renunciation is an essential 
 part of the conveyance in which the woman joins her husband, which, as 
 to her, is incomplete and null without it. This would not apply to the 
 proceeding, under the act of 1731, considered as a proceeding of record 
 in Court. 
 
 The terms of the act are, " that no conveyance of lands, tenements or 
 hereditaments within this State, shall pass, alter or change from one per- 
 son to another, any estate of inheritance in fee simple, or any estate for 
 life or lives, nor shall any greater or higher estate be made or take effect 
 in any person or persons, or any use thereof, to be made by bargain, sale, 
 lease and release, or other instrument, unless the same be made in writing, 
 signed, sealed and recorded in the Clerk's Office of the county where the 
 *land mentioned to be passed or granted, shall be, in manner fol- r*j^jj 
 lowing ; that is to say, if the person or persons who shall make 
 and seal such instrument of writing, shall be resident within the State at 
 the time of making, signing and sealing the same, then the recording 
 shall be ^v^fh^n six months, &c." If not recorded within the time, the 
 act provides that the conveyance shall only be good between the parties 
 to it. The whole deed— every essential part of it, must be recorded, and 
 without the certificate of renunciation, the law docs not regard the instru-
 
 80 SOUTH CAROLINA EQUITY REPORTS. [*111 
 
 ment as the married woman's deed, nor can it affect her inheritance. The 
 purposes of the law would not be effected by recording the conveyance 
 without the renunciation. 
 
 But does the act of 1195 exempt these certificates from the operation 
 of the terms of that of 1*185 ? I do not perceive how this can be said. 
 It directs that the renunciation shall not be complete and legal until 
 recorded ; it provides no time for the recording, but leaves that to the gene- 
 ral law on the subject of recording conveyances. It seems to me that we 
 must conclude the act of 1795, to have altered the effect of that of 1785 
 only in this respect ; that leaving the time within which the recording is 
 required to be as before, it provides that unless so recorded, the instru- 
 ment shall have no operation or effect, even between the parties to it. 
 Although the woman, therefore, should die within one month from the 
 renunciation, still it would be good if recorded within six months ; how- 
 ever long she might live, it would be void if not recorded within the six 
 months. It is with some hesitation that we have come to this conclusion, 
 but if we err, we do so in promoting the general policy of the law, which 
 intends the protection of married women. 
 
 The defendant objects that William J. Reese, the purchaser of the 
 land is not a party. But as the complainants express their willingness to 
 confirm the sale to him, and only seek a moiety of the purchase money 
 received by the defendant, and his interest will not be effected by the 
 decree, that is not necessaiy. 
 
 ^,-|n-] *It is ordered and decreed, that upon the complainants' duly 
 -J executing a release of all their interest in the land in question, to 
 the said William J. Reese, and depositing the same with the Commis- 
 sioner, the defendant account for and pay to them a moiety of the 
 purchase money received by him on the sale of the said land, with 
 interest from the time of receiving the same. The defendant to pay the 
 costs (a) 
 
 Johnson, J., concurred. 
 
 O'Neall, J., having been absent at the argument, gave no opinion. 
 
 Ex parte F. F. Calmes. 
 
 No mode of investment having been prescribed by the ■will, the Court ordered a 
 residuary trust fund to be invested in laud and negroes, subject to the trusts and 
 limitations of the will. [*113] 
 
 Thomas Beasley, deceased, by his will bequeathed certain negroes in 
 trust for the use and benefit of his daughter, Mrs. Jane Williams, during 
 her life, and at her death to her children ; and after making several 
 devises, he directs his executors to sell the remainder of his real and 
 personal estate, and giving an equal portion of the proceeds to Mrs. 
 Williams, directs that it shall also be held in trust, and subject to the 
 
 (a) [See also 2 Con. Rep. 12.]
 
 *112] COLUMBIA, JANUARY, 1833. 81 
 
 same limitation as the negroes. The husband of the cestui que trust 
 owns uo land. Under these circumstances the petitioner, who is the 
 trustee, filed this petition, praj^ing that the residuary legacy may be 
 invested in the purchase of land and slaves. The Commissioner, on a 
 reference ordered for that purpose, reported these facts, and recommended 
 the investment. 
 
 Chancellor Johnston dismissed the petition, and the petitioner 
 appealed. 
 
 *Hakper, J. The petition is not to make any disposition i-^iio 
 of the slaves whatever, nor to change any investment directed L 
 by the will. It is to obtain the sanctiou of the Court for the investment 
 of a residuary trust fund, where no mode of investment has been directed 
 by the testator. On this subject, we must rely on the opinion of the 
 Commissioner, which seems well supported by the testimony. 
 
 To prevent future difficulty, it is proper to direct that the conveyance 
 to the trustee shall be on the trusts of the will. I do not mean that the 
 terms of the will shall be adopted in the conveyance, for the same words 
 have often a different effect, in a deed or a will, but that the will shall be 
 referred to, and the trusts of the deed declared to be the same with those 
 which are created by the will, with respect to the fund in question. 
 
 It is ordered that the order of the Chancellor be reversed, and the 
 report of the Commissioner confirmed and made the decree of the Court. 
 
 Johnson and O'Neall, Js , concurred. 
 
 J. J. Caldwell, for the petitioner. 
 
 John Eigleberger, Martin Kinad, Sen., and Adam Kibler v. 
 Michael Kibler, Sen., and David Kibler. 
 
 The right of a creditor to avoid a voluntary conveyance, arises from the fact that 
 he cannot otherwise be paid; and if a creditor comes into equity to avoid such a 
 conveyance, it must appear that he had no other means of payment : certain 
 creditors, (the plaintiffs) with a knowledge of such conveyance, stood by and 
 permitted other and junior creditors to exhaust the debtor's property, and mean- 
 while the donee had possession, and made permanent improvements on tlie land ; 
 on a bill filed to set aside the conveyance : Held, that they were not entitled to 
 relief. [*120] 
 The statute of limitations runs from the discovery of a fraud. [*]21] 
 A subsequent creditor with notice, is not entitled to have a voluntary conveyance 
 set aside. [*l:il] 
 
 The bill states that the plaintiffs, John Eigleberger and Martin Kinard, 
 have lately obtained judgments for considerable sums against the defend- 
 ant, Michael Kibler, on debts which were contracted as far back as 1816 
 and '18, and which have been, by successive renewals of notes, continued 
 to the notes on which judgments were obtained. That the plaintiif, 
 Adam Kibler, also lately obtained judgment against Michael, for a large 
 sum, which was founded in part on a debt contracted in 1816, by note 
 transferred to this plaintiff and renewed to himself in 1827 ; and the 
 *balance of the judgment was for a note taken to indemnify him r*|j^ 
 for his suretyship for Michael, for debts for which he has since been •- 
 YoL. I.— 6
 
 82 SOUTH CAROLINA EQUITY REPORTS. [*114 
 
 sued, and judgments obtained against him. That Michael Kibler, in 1822, 
 conveyed a tract of land to his son (the other defendant) David Kibler. 
 That he was then embarrassed — that the sale was voluntary, and intended 
 to defraud the rights of subsisting and subsequent creditors — and that 
 Michael has since become entirely insolvent. The bill prays that the 
 conveyance may be declared fraudulent and set aside, and the land made 
 liable for the payment of these debts. 
 
 The answer of David Kibler, admits that the conveyance to him was 
 voluntary, but denies that it was intended to defraud creditors. That his 
 father, Michael Kibler, at the date of the conveyance, had the ability to 
 pay all his debts, and has since become insolvent, from speculations and 
 misfortunes. That the plaintitTs well knew of the conveyance to him at 
 the time it was made ; and that they afterwards indulged the said 
 Michael, and renewed his note, and permitted the defendant to remain in 
 the possession of the land, and make permanent and valuable improve- 
 ments on it ; and submits whether these facts are not a good bar to the 
 relief sought. The answer also relies on the statute of limitations, and 
 insists that the plaintiffs have an adequate remedy at law. The bill was 
 taken pro confesso, as to Michael Kibler. 
 
 The case came to a hearing at Newberry, July, 1832. So much of the 
 testimony as is necessary to a correct understanding of the grounds made 
 and decided, is set forth by the Chancellor in the following decree : 
 
 Johnston, Chancellor. " I will consider the cases of the three plain- 
 tiffs separately — first Eigleberger's. It is said he is not a real, but only 
 a nominal plaintiff, that his name is employed by the sureties to the judg- 
 ment held by him ; this cannot vary the decree on his case. Those 
 claiming in his name can claim no more by virtue of that name tlian he 
 could himself. The rights of a nominal, are the measures of the rights 
 of the real plaintiff who uses his name. The latter is regarded as an 
 assignee. If the sureties have, as sureties, any equities, they must come into 
 ^. „-, * Court in their own name to assert them. None of them but Adam 
 -■ Kibler has done so, and none except him can be noticed. But as 
 his case as surety is distinguished from the case he sets up in the name 
 of Eigleberger, it will not be confounded with it ; it will be considered, 
 when we come to examine the rest of the claim set up by him in his own 
 name ; at present we will confine ourselves strictly to the claim of Eigle- 
 berger. Eigleberger's demand consists, in law, of two judgments signed 
 November 24th, 1 830 ; one of which is founded on a note dated Sep- 
 tember 23, 1828, and due'at three days, and the other on another note, 
 dated January 13th, 1829. The faces of his notes show him to be a 
 creditor subsequent to the date of the deed to David, which he seeks to 
 avoid, and as a subsequent creditor, he is not entitled to the relief which 
 he seeks, because according to his own testimony, be became such 
 creditor with full notice of the deed. But it is said lie is entitled to 
 rank as a subsisting creditor. It is alleged that one of his judgments 
 (the one to which Wicker and H. Kinard are sureties) resulted from a 
 debt originating at Shealy's sale. The proof of this ought to be clear. 
 So far from it, however, if either of the judgments had such origin, there 
 is as much evidence that it was the other judgment as this. There is no 
 other proof of the allegation than that old Kibler bought to an 
 uncertain amount at Shealy's sale, in 18 It, and that his administrator
 
 *115] COLUMBIA, JANUARY, 1833. 83 
 
 transferred a note on hira in 1823, to John Kibler, Jr. The date of the 
 note when it fell clue, the consideration whether it was an original or 
 renewed note — all these things are left in uncertainty. How do we 
 know that the note transferred to John Kibler arose at Shealy's sale ? 
 How do we know it bore date prior to the date of David's deed, Decem- 
 ber ISth, 1822 ? If it arose out of Shealy's sale, and bore date before 
 the deed, how does it appear that it was not the original note of 1817, 
 and barred at the date of the deed ? And if so, if the note which is 
 made the ground of relief for Col. Eigleberger, was barred at the execu- 
 tion of the deed, must not the right to the relief itself fall to the ground ? 
 I *think so. Here is a fit place to express an opinion as to the r>};iip 
 effect that old Kibler's acknowledgment of debts, made subsequent L 
 to the deed should have on David, to whom he had conveyed. The 
 utmost that any one could contend for, would be, that such subsequent 
 acknowledgments by old Kibler, would, if made bona fide and not con- 
 clusively, be good to keep alive a demand which was at the date of the 
 conveyance, in full force, either on its face or by virtue of prior reviving 
 promises. That as to all subsequent bona fide acknowledgments, such 
 effect would be no injustice to one who taking as a volunteer, took sub- 
 ject to the existing debts ; and as between the donor and donee, the 
 latter became from the date of the gift, the trustee of the former, to pay 
 off the incumbrances with the property received ; and thus a priority 
 would exist between them, even after the conveyance, sufficient to bind 
 the donee, by the acts of his trustee, if not fraudulently done. Be this 
 as it may, there is no necessity to express an opinion upon it. On the 
 other hand, I hold that David is not bound by any acknowledgments 
 made by his father after the deed, of any debt then barred. My positions 
 then are, that there is not evidence tracing Col. Eigleberger's debt back 
 beyond 1823. That if the evidence does trace it back further, it indi- 
 cates no time at which we can say with any confidence, that the note 
 transferred to John Kil)ler had its origin, unless we connect it with 
 Shealy's sale, and then it was barred at the date of the deed — that there 
 is no evidence of any reviving promises before the date of the deed, and 
 if there was, no time is assigned to them ; so that even after that, the bar 
 might have been complete, at the date of the deed ; that if barred when 
 the deed was executed, no subsequent act or admission of old Kibler 
 could receive the debt so as to bind David. That Eigleberger being 
 barred on the contract, is incidentally barred of the relief he claims. 
 But I go further, I think he is barred directly as to the relief. Grant 
 that his debt originated before, and was in full force at the date of the 
 deed. Grant furtlier, that the note was in full force when transferred to 
 John Kibler in 1823. If Eigleberger goes back to 1823, to claim the 
 benefit of *the rights which John Kibler then had, he must put r^jj-^ 
 himself in his shoes, and be suljject to his disabilities. The act of 
 limitations runs from notice of the fraud. That which is here charged 
 as a fraud, was known to John Kibler in 1822, when he witnessed the 
 deed ; and he had notice further when David took possession in 1824. 
 There is still another ground upon which Col. Eigleberger must fail, 
 whether he be regarded as a subsequent or subsisting creditor. It is, 
 that he has full remedy at law. It does not appear, either by^the bill or 
 by the testimony, that (whatever may be the case with old Kibler) his
 
 84 SOUTH CAROLINA EQUITY REPORTS. [*117 
 
 sureties are not very solvent, and that a ji. fa. or ca sa. will not make 
 the money. 
 
 Next, Kinard's case. 
 
 This stands on a judgment confessed May 21st, 1832, upon a note exe- 
 cuted by old Kibler, on the 10th of the same month. 
 
 David had been upwards of eight years in possession, with a notorious 
 claim, and his deed had been nearly two years on record ; taking things in 
 this situation, Kinard is a subsequent creditor with notice. But in this 
 case, as in Eigleberger's, an attempt is made to trace back the debt, and 
 to show that Kinard was a subsisting creditor at the date of the deed to 
 David Kibler. The proof ought to be plenary ; it is very loose — the first 
 step carries us back to a note executed the 1st February, 1828, and due 
 at three days. The next, by very flimsy testimony, carries us to what 
 one of the witnesses thinks was a note dated December 27th, 1823, and 
 due at three days. Can we go further ? The witness says, that note 
 was the renewal of another, of which Kinard retained possession. It was 
 then in his power to produce it, and the verbal proof of its contents, date 
 &c., is competent. The notes produced have no connection, so far as 
 was shown, with the judgment. The proof then at most, goes no further 
 back than 1823. As to what David Kibler says in his answer, that he 
 had been told that a small part of Kinard's debt was contracted for cur- 
 rent expenses, but that he did not know how the fact was, that cannot 
 *nQi operate as an admission of the *fact. The remarks on Eigleber- 
 -^ ger's case, touching the bar, both as to the notes and the fraud, will, 
 with modifications which will readily suggest themselves, apply to this 
 case. There was no proof of the credits endorsed on the supposed notes 
 of 1823. 
 
 There is another matter ; Kinard had surety for his demand. There 
 is no proof that when he relinquished it, it was not available. Can he, 
 after such waiver and relinquishment, hold David's land liable to, and as 
 it were, security for his debt ? T doubt it. The testimony of Jacob 
 Kibler has thrown suspicion on this claim. It surely was competent for 
 Kinard to say, whether he held a denuiiid on old Kibler or not. He said 
 he had none. Can it be, that Adam Kibler and his father, after all was 
 settled, raked it up without Kin:ird's knowledge ? Come from what quarter 
 it may, I cannot on the testimony support it. 
 
 Now for Adam Kibler's case. 
 
 The testimony of Jacob Kibler and Levi Cook shows, that Adam, in 
 1828, received pay for, and gave up to his father, the note for which the 
 $700 note is substituted. I mean that he received pay for the note he 
 alleges originated at Feller's sale. Circumstances corroborate their 
 testimony, even if they were not, as they are, men of character. "When 
 Adam took the $1102 note, on the 6th of March, 1832, why did he ne- 
 glect the other demand ? He took the large note for his indemmity, 
 and if the $700 demand would stand in need of renewal in nineteen days 
 afterwards (it was renewed the 25th), why was it omitted when the 
 large note was taken ? Its being omitted then, and renewed in so short 
 a time afterwards, makes the renewal look like an after thought. I have 
 no doubt it was settled ; and why, unless for fraud, was it revived ? I 
 cannot support that part of this case. But he says he has had to pay, 
 and is liable to pay, large sums for his father, as surety. Is it not plain
 
 *118] COLUMBIA, JANUARY, 1833. 85 
 
 that he became surety with liis eyes open ? Among the persons to whom 
 he became surety, is David Kibler He now wishes to make David's own 
 debt liable to pay the debt to himself. This would be an extraordinary 
 way *of giving a man security. His becoming security with his rxciiq 
 eyes open, is enough for his case. But, not to rely on that, he L 
 holds an ample idemnity against these securityships in his own hands. He 
 stated to Levi Cook that, after giving his father the Feller's note for his 
 land, he still owed his father a balance, for which he gave him his note. 
 He stated the same thing to Jacob Kibler, on two occasions ; and that 
 the note for the balance was either $500 or $600. Take it at the lowest 
 of these sums, and he owes his father more than enough to indemnify 
 him for the balance on his own small judgment, and for what he is liable 
 to Eigleberger, David Kibler and Jacob Kibler, and for what he has had 
 to pay on Herbert's judgment, to say nothing of the four or five bales of 
 cotton he sold last year." 
 
 The bill was dismissed with costs, and as among the plaintiffs, Adam 
 Kibler was made primarily liable. 
 
 From this decree the plaintiffs appealed on the following grounds : 
 
 1. That the debts being in existence at the time of the conveyance of 
 the land, the plaintiffs are to be regarded as subsisting creditors at that 
 time, and entitled to relief against it. 
 
 2. That the acknowledgment of the notes by Michael Kibler, would 
 prevent them from being barred by the statue of limitations. 
 
 3. That the Chancellor erred in deciding that the statute of limitations 
 barred the plaintiffs' right to relief, after four years from the discovery 
 of the fraud. 
 
 4. That the Chancellor erred in deciding that the acts of Michael after 
 the conveyance, could not affect the rights of David Kibler. 
 
 Dunlap and Summer, for the appellants. 
 
 Caldwell and Fair, contra. 
 
 O'Neall, J. The cases of Eigleberger and Kinard may, appears to 
 me, be put on the same ground. For, although I concur with the Chan- 
 cellor, that there was not sufficient evidence of the existence of their 
 debts, at the execution of the deed to David Kibler, yet I will concede 
 to them all *that they can ask — that their debts were prior to the r*j20 
 accrual of the defendant's right, and still I think they are not en- 
 titled to recover. The right of a creditor to avoid a voluntary conveyance, 
 where the possession is in the donee, arises from the fact that he cannot 
 otherwise be paid out of his debtor's estate. It is hence, a fraud on his 
 rights and is therefore, as against him, void. But if a creditor should 
 seek to set aside, in this Court, a voluntary conveyance, and it appeared 
 that his debtor had other property, he would be compelled first to ex- 
 haust it. This is upon a first principle of equity, " that he who seeks 
 equity must first do equity." In the application of this principle, we are re- 
 quired to ascertain what would be justice between the parties : and surely 
 there can be no injustice to a creditor, to say to him, "be paid out o^^tliat 
 property of your debtor, to which no other person has any claim." It 
 he is paid, it is all that he has any right to ask. In the cases before us, 
 the creditors, with a full knowledge of the conveyance to David Kibler,
 
 86 SOUTH CAROLINA EQUITY REPORTS. [*120 
 
 and his actual possession, have stood by for near ten years, and have 
 suffered other debts, junior to theirs, to acquire prior liens, and the 
 estate of their debtor thus to be consumed. If they had been vigilant, 
 and within any reasonable time after David went into the possession of 
 the land, had made the claim to avoid the conveyance, they would have 
 been compelled to exhaust the rest of their debtor's property, before they 
 could have resorted to that conveyed to him, and out of this property of 
 their debtor's, they would have been satisfied. By their supineness, this 
 fund has been taken from them, and they cannot now be permitted to 
 make their own laches an injury to another. During the time the 
 defendant David has been in possession, he has made many valuable 
 improvements, and this constitutes another reason why the acquiescence 
 of the complainants, for so many years, in his title, must prevent them 
 from now disputing it. 
 
 Were it necessary for the purposes of the case, I should have little 
 hesitation in saying that each renewal of the debt, and taking a new 
 security, was a satisfaction of the antecedent one, and that these renewals 
 ^.-li)-!-] could not operate *to keep in existence, a charge on the land 
 -■ which had been previous to them, conveyed away, and the posses- 
 sion of which had accompanied the deed. So, too, I incline to the 
 opinion, that the defendant is protected by the statute of limitations. 
 The statute runs from the discovery of a fraud ; and the relief sought is 
 not to recover the land, but to be paid a debt out of it. It is in the 
 nature of an action of deceit. The injury of which the creditor com- 
 plains, is, that by the fraud of his debtor, he cannot be paid. This is 
 purely a pei'sonal, and not a real action ; and the statute runs from the 
 discovery of the fraud, as the accrual of the cause of action, and at the 
 expiration of four years, its bar is complete. 
 
 As to the case of Adam Kibler, it cannot admit of a question, that he 
 is not entitled to recover. If he is a creditor at all, he is a subsequent 
 one with notice, and as such can have no ground upon which he can say, 
 that the gift is a fraud as to him. But independent of this conclusive 
 objection to his recovery, then is another equally conclusive : all the 
 right of property of Michael Kibler, and the actual possession, had 
 passed from him to his donee, long anterior to the debt to Adam Kibler; 
 he can therefore have no ground, either legal or equitable, on which he 
 can found a claim for relief. 
 
 It is ordered and decreed, that the decree of the Chancellor be affirmed. 
 
 Johnson and Harper, Js., concurred. 
 
 *1221 **^^^^ Chesnut and Wife, and others, vs. James Strong and 
 ^"'-' Robert Strong, Executors of John Maybin, deceased. 
 
 A residuary bequest to be paid when the legatee arrives at twenty-one, gives a 
 present vested legacy, and the legatee will be entitled to the profits or interests 
 (if anj' accrue) in the interval between the testator's death and her attaining 
 twenty-one. [* 128] 
 
 The testator by his will, directed the remainder of his estate to be sold, and the 
 proceeds to be equally distributed among his grand-daughters, and adds "I allow
 
 *122] COLUMBIA, JANUARY, 1833. 87 
 
 my undernamed executors to retain the aforesaid children's parts in their hands, 
 until the children arrive at maturity;" on a bill filed against the executors to 
 account, it was held, that parol evidence was admissible to show that the execu- 
 tors retained the legacies in their hands without making interest on them, in 
 consequence of an agreement with the testator tliat they should not be bound to 
 invest the fund or make interest, nor be chargeable with interest on their failure 
 to do so: and that they accepted the executorship on that condition. [*12u] 
 Where there is something certain due, and there is a doubt whether the creditor 
 may not be entitled to something more, and he thinks proper to accept what is 
 certainly due and give a receipt in full, he is bound by it, notwithstanding it 
 should afterwards turn out that he was entitled to more. [*r27] 
 
 The testator's will, after certain specific devises, proceeds, viz : "And 
 likewise the remainder to be equally distributed between Sarah, Jennet 
 and Margaret Maybin, daughters of Andrew Maybin ; and I allow my 
 undernamed executors to retain the aforesaid children's parts that I have 
 herein bequeathed to them, in their hands, until the children arrive at the 
 years of maturity," &c : and tlien directs a sale of his whole real and 
 personal estate. The defendants qualified as executors, and sold the 
 estate as directed. The legatees in the above clause, married, and they 
 and their husbands filed this bill against the executors for an account. 
 
 The commissioner made a report, in which the defendants were charged 
 with considerable balances and interest thereon, as to two of the legatees ; 
 and as to the other, Mrs. Thompson, he reported in favor of the defend- 
 ants, on the ground that in 1827, her husband had given a receipt for 
 $1087 in full of his wife's legacy, although if interest had been computed, 
 a much larger sum would have been due. 
 
 The case was heard at Chester, July, 1831. On the trial, the defend- 
 ants insisted that they were only chargeable with such interest as they 
 had made ; and tendered parol evidence to prove an agreement with the 
 testator, that they were not to be charged with interest on these legacies, 
 and that they had qualified as executors expressly on this condition. 
 The evidence was rejected, and the following decree delivered. 
 
 Johnson, J. {sitting for Chancellor Johnston.) It is objected on 
 the part of the defendants, that the complainants are not entitled to the 
 interest which accrued in the interval between the death of the testator, 
 and their attaining maturity or twenty-one years of age. 
 
 It is obvious that this question must be resolved by the inquiry whether 
 the testator has disposed of the interest, ^growing out of this part r*]^23 
 of his estate. For it is only in the event of his not having done ^ 
 so, that the law makes any disposition of it. There is certainly no spe- 
 cific disposition of it in the will, but the remainder is devised to the 
 complainants, and if no one else can claim, of course they are entitled. 
 
 If there is no disposition of the accruing interests or profits, they fall 
 necessarily into the residuum of the estate, and must go with it according 
 to the will, if there is any disposition of the residuum, or be distributed 
 according to our act of distribution, as in case of intestacy. And in the 
 case of Nichols and Osburn, 2 P. W. 419, cited in 2 Roper on Legacies, 
 212, it was held upon very clear principles, that when the residue is so 
 given, as not to be payable until the legatee attained twenty one, with a 
 limitation over in the event of his dying within that period, that the 
 accruing interest should go to his legal representatives and not to the 
 remainder ; and that too, in the case of a niece and not a child, which 
 seems to be an exception.
 
 88 SOUTH EQUITY CAROLINA REPORTS. [*123 
 
 The objection has been attempted to be sustained upon the authority 
 of the general rule, that legacies payable at a future period, or the hap- 
 pening of some contingency, would not carry interest; and there is no 
 doubt about the correctness of the rule. That is not, however, a new or 
 arbitrary rule, but the result of a construction by which the testator's in- 
 tention is attained. If a legacy be to one of a certain sura, when he shall 
 attain the age of twenty-one, we understand that the testator meant what 
 he expressed — that the legatee should have that much at that time, and 
 not in addition what may have accumulated upon it in the form of inter- 
 est, or the profits of a fortunate investment ; and even in those cases, au 
 exception is allowed in favor of a wife or child who has no other provi- 
 sion for support, founded on the supposition that a husband or father 
 would not will that his wife or child should starve, ad interim, (2 Roper, 
 182, 4, 6, and the cases there cited.) 
 
 The parol evidence tendered by the defendants to prove an agreement 
 *1 911 between themselves and the testator, that *they were not to account 
 -^ for the interest on these legacies, and that they positively declared 
 to him their determination not to qualify, unless they were exempt from 
 this accountability, cannot be received, upon the very familiar rule that 
 the terms of a written trust cannot be varied by parol. 
 
 The will creates a direct trust in the defendants to retain these legacies 
 until the legatees shall attain maturity, and the obligation raised by law 
 is, that they should employ the fund, so as if practicable, to make a profit 
 for the legatee. By qualifying, they have accepted the trust, and neces- 
 sarily undertook to fulfil it; nay, more, they have sworn to do so, and the 
 evidence offered, is intended to show not only that the testator by his will, 
 gave them the use of this fund during the minority of the legatees, con- 
 trary to his intention plainly expressed in the will, but that they did not 
 undertake to do what they have solemnly sworn they would perform. 
 
 It is therefore referred to the Commissioner to state the defendants' 
 accounts, charging them with interest on these legacies, according to the 
 principles of this decree. 
 
 From this decree the plaintiffs, Thompson and Wife, appealed, on the 
 ground, that the Commissioner and Chancellor had rejected their claim ; 
 and the defendants appealed on the grounds : 
 
 1. That by the terms of the will the executors are entitled to retain 
 the legacies in their hands, free of interest, until the legatees arrive at 
 maturity. 
 
 2. That the Court rejected the parol evidence offered to show the terras 
 on which the defendants undertook the trust ; the plaintiffs' right to 
 interest being at best but an equity, and as such, liable to be rebutted by 
 parol. 
 
 Clarke and JWCall, for the defendants, argued that the will authorized 
 the executors to retain the legacies in their hands, and gave thera the use 
 of the fund until the legatees reached raaturity ; that interest is a mere 
 equity, and formerly was not charged against trustees, except where they 
 5^1 gp-] made it; that parol evidence is admissible in this case, *to rebut 
 ^ the equity, or in aid of a doubtful construction of the will, or to 
 repel a legal inference ; and at most, that by the terms of the will, the 
 legacies not being payable until the legatees arrive to twenty-one, did
 
 *125] COLUMBIA, JANUARY, 1833. 89 
 
 not bear interest until after that time. They cited and relied on the fol- 
 lowinj? authorities : 3 Bacon, Tit. Legacy B. 446 ; 2 Bro. Ch. Rep. 500 ; 
 1 Swinburne, 358; Harp. Rep. 42; 12 Yes. 386; 1 Eq. Rep. 193; G 
 Yes. 324, 397 ; 7 lb. 228 ; 2 Fonb. 475 ; Amb. 126 ; 2 John Ch. 614 ; 
 3 Yes. 1.3, 282; 4 lb. 1 ; 1 M'C. Ch. 456 ; 2 Dallas, 171 ; 1 John. Ch 
 231 ; 2 Roper, 545-6 ; 3 John, Ob. 369; 5 lb. 68 ; Roberts on Frauds, 
 10, 11. 
 
 Williams, contra. 
 
 Harper, J. We agree with the presiding Chancellor, upon the effect 
 of the bequest in the residuary clause of the testator's will. It would 
 not have the effect of giving beneficially to the executors, the interest on 
 the legacies, until the legatees should attain the age of twenty-one. The 
 case of Nichols v. Osborne, is sufficient authority for this purpose, and 
 there are many others to the same effect. The case is stronger against 
 executors in this country than in England. Under our statute of distri- 
 butions, it is always intended that the executor takes as a trustee, and 
 not for himself, unless the intention to give him beneficially, be plainly 
 expressed. The bequest of the residue to the testator's grand daughters, 
 gives a present vested legacy, and the direction that it shall be retained 
 in the hands of the executors till they attain the age of twenty-one, only 
 fixes the time of payment. It is debitum in iDresenti, solvendum in 
 fiduro. 
 
 We agree also, with the Chancellor, that parol evidence was inadmis- 
 sible to show that the testator intended the executors to take this inter- 
 est. That would be to alter and add to the will. But as now explained 
 in argument, we understand the parol evidence to have been offered for a 
 different purpose — to show that the executors did in fact retain the lega- 
 cies in their hands, without making interest on them, and that this was in 
 
 consequence *of an agreement or understanding with the testator, 
 
 [*126 
 
 that they should not be bound to invest the fund or make interest, 
 nor be chargeable with the interest upon failure to do so, and that they 
 accepted the executorship on that condition. For this purpose we think 
 the testimony was admissible. It was not to add to, or in any respect 
 alter the terms of the will, but to excuse themselves for having failed to 
 make interest. This Court habitually receives evidence to show that 
 there were suits depending against an estate, and that the executor re- 
 tained funds unemployed in his hands, to meet the demands which might 
 be established, to excuse him from the payment of interest. In the case 
 of Breure ;;. Pemberton,. 12 Yes. 386, the Court refused to charge an 
 executor with interest, on the ground that he acted fairly, under^ the 
 belief that the balance in his hands belonged to himself as commissions, 
 as in fact it would have done if he had charged commissions properly in 
 his accounts from time to time. If the defendants in this case did have 
 such an understanding with the testator, and accepted the office of exec- 
 utor upon such condition, I think it quite as good an excuse. ^ 
 
 The charging of an executor with interest on balances in his hands, is 
 a creature of this Court, and it is by comparatively modern decisions 
 that the doctrine has been fully established. But it is a general rule that 
 parol evidence may be received, to rebut an equity. The distinction
 
 90 SOUTH EQUITY CAROLINA REPORTS. [*126 
 
 between receiving parol evidence for the purpose of altering or explain- 
 ing a written instrument, and for the purpose of rebutting an equity, is 
 very fully considered in the case of Townsend v. Stangroom, 6 Yes. 828, 
 and Rich v. Jackson, in a note to that case. The first was a bill for the 
 specific performance of a contract to lease. The Chancellor admitted 
 parol evidence to show, that the intended lessee knew at the time of the 
 agreement, that part of the lands described in it had been leased to 
 another person. He could not execute any other agreement than that 
 which the parties had entered into ; the evidence w^as received to rebut 
 an equity — to rebut the right to a specific performance, and on it the bill 
 *19*7'1 ^'^^ dismissed. *0n this ground, the Court will not execute an 
 -^ agreement under seal, which has been rescinded by parol. Yet 
 such an agreement cannot be discharged by ])arol, but the plaintiff's 
 equity is rebutted. In Rich v. Jackson, the Chancellor says in allusion 
 to the cases on the subject, " none go further than this, in the decisions 
 and rules laid down ; that parol evidence of the conduct of the parties, 
 the manner of conducting the transaction, the unfairness and hardship, 
 may afford a good ground to leave the party in the condition in which he 
 put himself at law, to make what he pleases to make of it, but ought not 
 to make this Court give him any aid." There are other cases proceeding 
 on the same principle of receiving parol evidence to rebut an equity ; as 
 to rebut the presumption that an executor is not intended to take the 
 residue, when a legacy is given him, &c. If in consequence of such an 
 understanding with the testator, and believing that the will provided for 
 their doing so, the defendants were induced to accept the office of execu- 
 tor, and retain the fund in their hands without making interest, it would 
 be a case of great unfairness and hardship now to charge them with 
 interest, and I think the complainants, volunteers under the testator, are 
 not entitled to the aid of the Court for that purpose. Of course I can 
 say nothing of the effect of the testimony Avhicli is to be produced. But 
 if the defendants should be able to give such testimony as they purpose, 
 it will be much strengthened by the terms of the will, which seem to point 
 to such an understanding, though they are not sufficient, of themselves, 
 to express it. Of course the defendants must account for any interest 
 which they have actually made. 
 
 With respect to the complainants' ground of appeal, nothing appears 
 but what is stated in the Commissioner's report — the simple fact that the 
 complainant, J. Y. Thompson, did receive from the defendants the sum 
 of $1087, equal to the principal of the legacy, and give a receipt in full. 
 It is said that a receipt may be contradicted or explained by parol testi- 
 mony, a receipt being only a written admission of a previous fact ; and 
 *1 9Q-1 if the fact be not true, the *party is not estopped by his admis- 
 
 "" -' sion : (see the cases referred to in the American edition of Philips' 
 Ev. 74.) A receipt is certainly evidence against a party, and in general 
 conclusive evidence. But supposing that a mistake may be shown, I am 
 not aware that any has been shown in the present instance. The error 
 or mistake is supposed to have been, in admitting the $1087 to have been 
 in full of the legacy, when in fact he was entitled to interest on it besides. 
 That is a matter still doubtful. If a person having a claim against 
 another, thinks proper to forgive the debt, and with this view executes a 
 receipt, this will bind him. It is a gift executed, and cannot be recalled.
 
 *128] COLUMBIA, JANUARY, 1833. H 
 
 So, if he receive part of his demand, and give a receipt for the whole. 
 In Martin v. Mowlin, 2 Burr. 979, Lord Mansfield seems to take for 
 granted, that even a mortgage debt may be forgiven by parol ; and in 
 case of a bond, where a less sum than the bond was conditioned for had 
 been paid, Chief Justice Marshall said, that although the jury were satis- 
 fied in fact that it was not, yet in law they ought to presume that it was, 
 fully paid — 5 Cranch, 11. The case seems to me to be still stronger 
 where there is something certain due, and there is a doubt whether the 
 creditor may not be entitled to something more, and he thinks proper to 
 accept what is certainly due, and gives a receipt in full. Such appears 
 to be the present case, and I think this complainant must be bound by 
 his receipt. With respect to the rest of the complainants, it is ordered, 
 that the case be remanded to the Circut Court, for the purpose of receiv- 
 ing the evidence, and being heard and determined. 
 
 O'Xeall, J., concurred. 
 
 *RoGER LovELAND and KoBERT WiLSGN V. James Mansell and r^i29 
 Samuel Reid, Sheriff. *- 
 
 A tract of land being under levy, the defendant (in this case) had agreed with the 
 debtor and creditor to purchase it at a fair price, and the sheriff was instructed 
 not to sell ; and in consequence of this agreement neither creditor nor debtor 
 attended on sale day, and the land was sold by the sheriff and purchabed by this 
 defendant at an undervalue, whereby the debt was endangered: on a bill filed for 
 this purpose, the sale was set aside. [*131] 
 
 The bill states that the plaintiff Wilson, being indebted to the plaintiff 
 Lovelaud and others, a tract of land belonging to him in Pickens 
 District, of 250 acres, was levied on by virtue of Loveland's execution, 
 and advertised for sale on the first Monday in July, 1829 ; that pending 
 the levy, the plaintiffs made a contract for the sale of the land to the 
 defendant Mansell, for $500 ; and the sheriff, Reid was directed not to 
 sell in July, but to continue the advertisement after that, and not to sell 
 unless Lovelaud or his agent was present. That on the sale day, in 
 August, Wilson attended at Anderson Court House, according to an 
 understanding with Mansell, in order to remove some difficulties in the 
 title to the land, which was soon after to have been executed. That, not- 
 withstanding the instructions to the sheriff, and in the absence of the 
 plaintiffs, the land was sold by the sheriff on that day, and purchased ))y 
 Mansell for $131. The bill avers that Loveland's debt is endangered by 
 the sacrifice of the land, and prays that the sheriff's sale may be set 
 aside, and the contract of sale with Mansell specifically enforced. 
 
 The answer of Mansell admits the purchase at sheriff's sale, and his 
 parol agreement to purchase the 250 acres at $500 ; but alleges that this 
 agreement was made in consideration of a mill-tract of 80 acres, which 
 he had purchased of Wilson and received titles for, but which he had 
 failed to record, should be exempt from the lien of Loveland's execution, 
 which, although junior to the title, had been levied on this tract. That,
 
 92 SOUTH CAROLINA EQUITY REPORTS. [*129 
 
 being surprised to learn that his tract of 80 acres was advertised for 
 sale, and no tender of titles for the 250 acres being made, he was induced 
 to believe that the plaintiffs did not intend to perform their contract ; 
 and that his tract of 80 acres was actually sold under Loveland's execu- 
 tion, on the sale day in September following. He denies that he knew of any 
 ^, „, ■] instructions to the sheriff, Reid, or that he had any *comraunication 
 -J or acquaintance with him until after the sale of the 250 acres. 
 
 The Sheriff, in his answer, admits the levy and advertisement as stated 
 in the bill ; and that he was directed not to sell in July, unless Loveland 
 or his agent was present. That, receiving no further instructions, and 
 not knowing of any arrangement between the parties, he sold in August. 
 He had no communication or acquaintance with Mansell until after that 
 sale. 
 
 The case came to trial at Pickens, July, 1832, and the following facts 
 appeared in evidence : 
 
 In tlie year 1829, the land of Wilson being then under levy of Love- 
 land's execution, and Mansell being apprehensive that a tract of 80 
 acres which he had bought, was also subject to the lien of this execution ; 
 it was agreed between Mansell, Loveland and Wilson, (by his agent 
 Dunham) that Mansell was to give his note to Loveland for $500, when 
 a good unincumbered title was made to him, and that Loveland should 
 satisfy his execution. Dunham, the agent of Wilson, also held another 
 junior execution against him ; and it was then agreed that Dunham 
 should attend at Anderson, on the sale day in August, and effect a sale 
 of Wilson's property to satisfy his execution, and thus disencumber the 
 land, so as to leave the agreement in relation to it, to be executed In 
 order that the agreement might be carried into effect, Loveland wrote a 
 letter to the sheriff, Reid, stating that an arrangement had been made 
 concerning the land, and directing him not to sell it, but to continue the 
 advertisement. This letter was read to Mansell, and afterwards sent to 
 the sheriff, before sale day. On the Saturday previous to the sale day in 
 August, Wilson, Mansell and Dunham being present together, Wilson 
 stated that there was property levied on and to be sold at Anderson on 
 next Monday, suflBcient to satisfy Dunham's execution, for which purpose 
 they would attend at Anderson, and that Mansell should get titles to the 
 land the next week ; and so it was agreed. Wilson and Dunham 
 accordingly attended at Anderson Court House, and had Wilson's execu- 
 *1311 ^^^^^ satisfied. Mansell being advised, as it seems, by a *message 
 -^ from some one, through his son, that his land was to be sold, 
 attended Pickens on the sale day in August, when the sheriff, either 
 having forgotten the letter or misconstruing its contents, exposed the 
 land to sale, and it was purchased by Mansell at $131. Mansell on this 
 occasion, forbid the sale of the eighty-dollar-acre tract. It was sold on the 
 sale day in September following, by the order of Dunham. Mansell did not 
 apprise the sheriff of the arrangement with Wilson and Loveland, but 
 he told others, both before and at the sale, that he had contracted for the 
 land ; and the Sheriff testified that if he had been apprised of the 
 arrangement, he would not have sold. Dunham procured a title deed 
 from Wilson to Mansell, on the Tuesday after sale day, but on hearing 
 of the purchase at sheriff's sale, did not tender it immediately, nor for a 
 month or two after, when Mansell refused to accept it.
 
 *131] COLUMBIA, JANUARY, 1833. 93 
 
 Johnston, Chancellor. I have come to the conclusion that the plain- 
 tiffs are entitled to a decree. 
 
 I do not think they are entitled to a specific performance of the con- 
 tract alleged in the bill, and proved on the trial : the statute of fraud 
 stands in their way, and there has not been proved such performance as 
 to take the case out of it. But it will not be permitted to the defendant 
 Mausell, to take advantage of an absence of the parties interested, pro- 
 duced by his bargain, to violate that bargain to their injury. 
 
 The testimony of Dunham and Osborne, shows that he knew that the 
 sheriff was instructed by letter to stispend the sale. The testimony of 
 Dunham, Holcombe, Osborne and Hunter, shows that he had agreed to 
 purchase the larger tract, and the terms of the contract ; Dunham and 
 Holcombe show that he knew that in consequence of the bargain he had 
 made, Dunham and Wilson would be at Anderson, and of course absent 
 from Pickens on the sale day in August. Now grant that the sheriff had 
 not received the letter, or misconstrued it, and that in consequence of 
 this, he, by a mistake on his part, and in perfect innocence, put up the 
 land for sale ; did not Mansell *know his bargain? did he not r^io9 
 know that Wilson and Dunham, on account of that very bargain, ^ '^"' 
 were absent ? Did he not know that but the Saturday before he had told 
 two substantial men at least, if not others, that he had bought, and thus, 
 by possibility prevented their attendance as competitors at the sale ? 
 Under these circumstances did he ask tlie sheriff why he proceeded to 
 sell ? Did he ask him if he had received the letter ? Did he tell him 
 of the bargain, which, as he answers, would have effectually stopped the 
 sale ? Was he at liberty to withhold this information, and become a 
 purchaser ? He told othera at the sale, and just before it, that he had 
 contracted for the land, a thing very well calculated to prevent them from 
 bidding against him ; but said nothing to the sheriff to prevent the sale 
 itself When he forbid the sale of the eighty acres, why did he keep his 
 mouth shut upon these other matters ? A word from him would have 
 been sufficient ; and if it had not, he would have been free from blame. 
 But he did not utter a word. 
 
 It is said he was under an impression that a trick was intended by the 
 other parties. This may be so. But from the evidence, we see nothing 
 to justify his suspicions. There appears but little ground for his taking 
 up such suspicions, from what his son told him the evening before the 
 sale. He told him his land (the eighty acres) was to be sold. He knew 
 before that it was levied on and advertised. 
 
 But if he did entertain such suspicions, if they were excited for the 
 first time by what his son told him, was he at liberty to proceed upon 
 mere suspicion, in a way which would work a fraud ui)on others, if his 
 suspicions turned out, as they have turned out, to be groundless ? Ouglit 
 he not to have inquired of the sheriff? Ought he not to have informed 
 him of the real state of the facts ? If he had done this he wouhi have 
 discharged his duty. He would not have been liable to the imputation 
 of an improper suppression of the truth. And he would have stood 
 justified in purchasing. 
 
 There is one point of some difficulty, in the way of *the plain- r^^gg 
 tiffs. The deed was not tendered to Mansell until after the smaller ^ 
 tract had been sold. On reflection, I am under the impression this can-
 
 94 SOUTH CAROLINA EQUITY REPORTS. [*133 
 
 not avail Mausell If the plaintiffs had insisted only on a specific per- 
 formance of the bargain (putting the statute out of the question) the 
 tender of the land would have been indispensable. But as they go also 
 for setting the sale aside, and of course in that point of view, do not 
 claim the benefit of the bargain, I think they are entitled to it, without 
 tendering the deed as a pre-requisite condition. 
 
 There is another matter in the w^ay of the plaintiff Loveland. It is 
 insisted that the sale of the eighty acres was a w^aiver of his rights under 
 the bargain, or arising in consequence of it. But he did not order that 
 sale, and there is no evidence that Dunham had any authority from him 
 to order it. He is not, therefore, to be injured by it. 
 
 I think Loveland is entitled to relief, by having the sale of the two 
 hundred and fifty acres sfct aside. As things stand, the sale was a fraud 
 on him, and as Wilson is insolvent, he will be without redress unless the 
 sale be avoided. To this Man sell can have no just objection, if his money 
 be refunded with interest. I will not set aside the sale of the smaller 
 tract, but will order the sum which it cost Mansell, in consequence of its 
 sale by the sheriff, to be refunded him out of the proceeds of the re-sale 
 of the larger tract, if so much remain after satisfying Loveland's execu- 
 tion. 
 
 It is decreed that upon the plaintiff Loveland's paying or tendering to 
 the defendant, Mansell, within two months from this time (or within two 
 months after the final decision of this case, in the Court of Appeals, if an 
 appeal be taken) the amount which he paid at the sheriff's sale for the 
 large tract described in the pleadings, together with the costs of the 
 sheriff's deed, and interest on those sums from the time he paid them, to 
 be ascertained by the Commissioner, the sale thereof to him by the 
 sheriff, and his title thereunder, be set aside : and that the sheriff of 
 *i^n r*ickens do thereupon proceed to duly advertise and sell the *said 
 J tract of land under the execution of Loveland ; and that if from the 
 proceeds thereof, enough remains after satisfying such execution, to repay 
 to the defendant Mansell, the sum which he has been obliged to pay in 
 consequence of the sale by the sheriff, of the smaller tract (including 
 costs of conveyance) with interest thereon, to be ascertained by the Com- 
 missioner, the same be paid over to him ; otherwise, that it be paid to 
 him by the plaintiff Wilson, for which this is to be considered as a 
 decree. The defendant Mansell to pay the costs of the suit. 
 
 But if the plaintiff Loveland shall not within the time above prescribed, 
 pay or tender to the defendant the sums above prescribed, as a pre- 
 requisite for setting aside the sale of the larger ti-act ; in that case it is 
 decreed that the bill stand dismissed with costs, to be paid by the plain- 
 tiffs. 
 
 From this decree the defendant Mansell appealed. 
 
 Burt, for the appellant. 
 J. N. WJntner, contra. 
 
 Per Curiam. We concur in the views taken of this cause by the 
 Chancellor, for the very satisfactory reasons contained in his decree. It 
 is therefore affirmed, and the appeal ordered to be dismissed.
 
 CASES IN CHANCERY 
 
 ARGUED AND DETERMINED IN THE 
 
 COURT OF APPEALS OF SOUTH CAROLIM. 
 
 (C^arltston— ^pnl, 1833. 
 
 JUDGES PRESENT. 
 
 Hon. DAYID JOHNSON, Presiding Judge. 
 Hon. J. B. O'NEALL. \ Hon. WILLIAM HARPER. 
 
 James R. Pringle and others, Trustees of Mrs. Cleary, vs. William 
 
 Allen. 
 
 Where a settlement of certain negroes was made to the use of husband and wife 
 during their joint lives, and to the use of the survitor, with a limitation over; 
 it was held, that upon the death of the husband, a legal estate vested in the wife 
 for life, which was subject to levy and sale under execution; but that the pur- 
 chaser at sheriff's sale, should before delivery, give bond and security for the 
 forthcoming of the property on the termination of the life estate. [*137] 
 
 The defendant, William Allen, recovered a judgment against N. Gr. 
 Cleary, sued out Siji.fa., and delivered it to the sheriff of Colleton Dis- 
 trict, who seized two negroes, and was about to sell them to satisfy the 
 debt, when the trustees of Mrs. Cleary filed this bill for an injunc- 
 tion* — alleging that the negroes belonged to the trustees The r*23g 
 defendant answered, denying the equity, and insisting that one of 
 the negroes was not connected with the trust at all, and that the life 
 estate of Mrs. Cleary in the other was liable to seizure and sale. 
 
 At the hearing, it appeared that one of the negroes was not in the set- 
 tlement ; and the injunction as to that slave was dissolved. As to the 
 other slave, it appeared that she was subject to a trust of a settlement, 
 whereby a large number of negroes were conveyed to trustees, for the use 
 of Samuel C. Graves and Susan M'Pherson, his intended wife, now Mrs. 
 Cleary, during their joint lives, and to the use of the survivor for life— 
 and after the decease of the survivor, to the issue of the marriage. 
 Samuel C. Graves died, leaving issue, and the negroes never were lu the 
 possession of the trustees. 
 
 The Chancellor continued the injunction as to these negroes, and
 
 96 SOUTH CAROLINA EQUITY REPORTS. [*136 
 
 ordered that the plaintiff's debt should be paid out of the income, and if 
 not paid by January following, that a receiver should be appointed. 
 From this decree the defendant appeals, and insists : 
 
 1. That a life estate in negroes is liable to execution at law, and that 
 it makes no difference whether the same be created by deed or will. 
 
 2. That the Court does not sit to force upon a creditor who has a right 
 to a common law execution, the unwelcome and inadequate process of this 
 Court, for the attainment of the same object. 
 
 Johnson, J. Upon looking into the case of Dr. Francis Porcher v. 
 Sarah B. Gist, decided here at the last sittings, I find that this case runs 
 all fours with it. There, as in this, the settlement was to the joint use of 
 the intended husband and wife for life, then to the use of the survivor for 
 life, and on the death of the survivor, to the use of the issue of the mar- 
 riage ; and it was held that upon the death of the husband, a legal estate 
 vested in the wife for life, which was liable to be levied on, and sold 
 under ^. /a. against the wife. The decree of the ^Circuit Court 
 -• must, therefore, be reversed, and the injunction set aside and dis- 
 solved, and it is so adjudged and decreed. 
 
 In Cordes and Adrian, (a) decided during the present sitting, an order 
 was made in the Circuit Court, that the purchaser, at sheriff sale, of a 
 life estate in slaves, should give bond and security that they should not 
 be carried out of the State, and that they should be forthcoming at the 
 termination of the life estate ; and without some security of this sort, it 
 is apparent that the interest of those entitled in remainder would be 
 jeopardized, particularly on sales by the sheriff, who must sell to the 
 highest bidder, whatever may be his character or responsibility. It is, 
 therefore, so reasonable and necessary, that we think it should be provi- 
 ded for, in every case. It is therefore ordered and decreed, that upon the 
 sale of the negroes taken in execution, at the suit of the defendant, 
 Allen, the purchaser shall, before delivery, enter into bond to the Com- 
 missioner of the Court, with good and sufficient security, to be approved 
 by the Commissioner, in an amount equal to double the value of the 
 negro or negroes, conditioned that the said negro or negroes shall not be 
 carried or removed out of the State, and that they, if alive, with the 
 increase of the females, shall be forthcoming at the termination of Mrs, 
 Cleary's life estate — costs to be paid out of the sales. 
 
 O'NEALLand Eakle, Js.(6) concurred. 
 
 *138] *JoHN J. Green vs. A. Alexander and others. 
 
 Where a debtor had; been arrested under a ca. sa. and admitted to the benefit of the 
 Prison Bound's Act, from wlience he made his escape; Held, that the plaintiff 
 might afterwards take out afi.fa. [*138] 
 
 Bill for injunction. 
 
 On the 23d of April, 1824, the defendant obtained a judgment against 
 
 ^) Vide post. 
 
 (b) Hakper, J., being absent during a part of this Term, Mr. Justice Earle sat 
 in his place.
 
 *138] 
 
 CHARLESTON, APRIL, 1833. 97 
 
 the plaintiff, upon which a fi. fa. was issued, and subsequently a capiat 
 ad. satisfaciendum ; under the latter, the plaintiff was arrested, and 
 having given the necessary security, was admitted to the benefit of the 
 prison bounds. After remaining for some time in the bounds, the plain- 
 tiff broke them, and went at large. Some time in 1832, the defendant, 
 under an alias fi. fa., levied upon the real estate of the plaintiff, and 
 advertised the same for sale, to prevent which, the present bill was 
 filed. 
 
 The cause was heard at Georgetown, before Chancellor Johnston, 
 Spring Term, 1832, who dismissed the bill. 
 
 From this decree the plaintiff appealed. 
 
 1. Because the arrest under the ca. sa. at law, exempted the property 
 of the defendant (in the execution) from levy. 
 
 2. Because the defendant (the present plaintiff) having been arrested 
 by a ca. sa., and made an escape, the plaintiff (at law) should have pro- 
 ceeded under the act of the legislature, either to retake the body, or to 
 sue on the bond. 
 
 Cohen, for the appellant, cited P. L. 45t, sec. 11 ; Mairs v. Smith, 3 
 M'C. 52 ; Cohen v. Greer, 4 M'C. 509. 2 Bay, 395. 
 
 DunTcin, contra, cited 2 Bac. Ab. tit. Exon. Y19; Tit. Escape, C. ; 
 Cro. Car. 240; Stat. 8 & 9 Wm. 8, P. L. App. 15, 16, 129. 
 
 Johnson, J. By the statute of 8 & 9 Wm. 3, P. L. Appendix, 15, 
 16, which is made of force in this State, it is provided that if any person, 
 taken in execution and committed to prison, shall escape from it by any 
 means whatever, the creditor or creditors at whose suit such prisoner was 
 charged in execution, at the time of his escape, *shall or may re- j-^-. qq 
 take such prisoner, by any new capias ad satisfaciendum, or sue ^ 
 forth any other kind of execution, as if the body of such prisoner had 
 never been taken in execution ; so that if the complainant had actually 
 escaped from the prison, the case would have been precisely that provided 
 for by the statute. He had, however, been admitted to the prison rules, 
 on giving bond conformably to the act usually called the prison bounds' 
 act ; and the question is, whether, having escaped from the prison rules, 
 the provisions of the statute apply. The confinement of a party in exe- 
 cution to the prison rules, is a restraint upon his personal liberty, and is 
 but a mitigated form of imprisonment, and that idea is clearly expressed 
 in the preamble to the prison bounds' act, (P. L. 456,) wherein it is reci- 
 ted, "that humanity requires that the confinement of persons on civil 
 process should be less rigorous than heretofore ;" and the remedy provi- 
 ded, is, that upon giving security to the sheriff, that he will nofgo with- 
 out certain prescribed bounds, he shall not be confined within the walls 
 of the prison ; indeed all the provisions of the act tend to show, that he 
 is considered as being in confinement and in the custody of the law. 
 Thus if he fail to render a schedule of his effects agreeably to the tenor 
 of his bond ; if he be seen without the prison rules ; if he shall have 
 spent more than two shillings and six pence per day, or shall have fraud- 
 
 Qucbre.— Ought not the fact of the escape to be ascertained in some judicial form 
 before the issuing of the j?. fa.t See Aiken v. Moore, 1 Hill's Kep. 432. 
 YOL. I.— 7
 
 98 SOUTH CAROLINA EQUITY REPORTS. [*139 
 
 ulently sold, conveyed, or assigned liis estate ; he shall not be any longer 
 entitled to the rules. He is then in confinement, and the prison rules 
 instead of the walls constitute his prison, and if he escape therefrom, it 
 is an escape from prison within the meaning of the statute. 
 
 The second ground of the motion, assumes that the plaintiff is entitled 
 to no other remedy than that provided by the prison bounds' act — to pro- 
 ceed to retake him, or against his securities for the bounds, or if they be 
 insufficient, against the sheriff. 
 
 There is no clause in the act repealing the statute, nor is there any 
 repugnance which would operate as a virtual repeal ; on the contrary, 
 they are entirely consistent : according to the statute, if one in execution 
 *i ml escape from prison, the plaintiff* may retake him by a new capias, 
 J or sue out any other form of execution ; according to the act, he 
 may retake him, or sue the sureties, or the sheriff. The one (the statute) 
 providing a general remedy, the other (the act) providing for the partic- 
 ular case, and both must stand. 
 
 We therefore concur with the Chancellor, and his decree is affirmed. 
 
 O'Neall, J., concurred. 
 Harper, J., absent. 
 
 Ex Parte, John Smith, in the matter of the executors of Bradshaw. 
 
 The Court of Chancery may order the funds of an infant under its control, to be 
 paid to a guardian residing and appointed in another State, but in doing so, will 
 take every precaution to guard against abuse and loss to the infant: the Court 
 will, in such case, order a reference to ascertain the fact of the guardian's 
 appointment, his fitness and whether sufficient security has been given. [*141] 
 
 James Bradshaw died in 1828, having previously made his will, 
 bequeathing his property to his two minor children, about the ages of 
 eight and five years. Geo. W. Egleston and P. G. Gerard were appoin- 
 ted executors. They qualified and sold the property, paid the debts and 
 invested the proceeds under the order of this Court, in stock. 
 
 Mrs. Bradshaw died before her husband. The children reside with 
 their maternal grandfather, John Smith of New York. He was appoin- 
 ted by the Surrogate of New York guardian of these children, and gave 
 bond and security for the discharge of his duties. 
 
 The executors have always paid him the dividends on the stock, and 
 he has recently applied to them, to transfer the property to him as guar- 
 dian. 
 
 The executors admit the facts stated in the petition, and are perfectly 
 
 willing to transfer the estate if they can receive the sanction of the Court ; 
 
 but they are not willing to transfer the property to a guardian not 
 
 * 14.11 ^PPoi^tcd in *this State, without such sanction, and this petition 
 
 -' was accordingly filed to obtain it. 
 
 Chancellor Johnston dismissed the petition — and a motion is now sub- 
 mitted to reverse the decision, on the ground that the petitioner having 
 been appointed guardian of the legatees, in the city of New York, how
 
 *141] CHARLESTON, APRIL, 1833. 99 
 
 the place of their clomicil, was entitled to receive the estate of the minors 
 and the prayer of the petition should have been granted. 
 
 Dunkin, for the petitioner. 
 
 Harper, J. I have no doubt on principle and the practice of the 
 Court of Chancery, of the competency of the Court to order funds of an 
 infant under its control, to be paid to a guardian appointed and residing 
 in another State. This must often be a matter of almost absolute 
 necessity, but is subject to the direction of the Court. It has been held, 
 that where no administration had been granted in the State, a debtor of 
 an intestate, making payment bona fide to an administrator, appointed in 
 another State where the intestate was domiciliated at the time of his 
 death, was discharged. The executors might perhaps have been justified 
 in paying over to the guardian, on their own responsibility. With 
 respect to the infants, however, they are trustees, and it was proper that 
 they should take the direction of the Court. 
 
 In making such an order, the Court will take every precaution to guard 
 against abuse and loss to the infants. There must be a reference, not 
 only to ascertain the fact of the guardian's having been regularly 
 appointed, according to the laws of the State in which he and the ward 
 reside, but his fitness for the appointment ; and whether sufficient security 
 has been given. 
 
 The order dismissing the petition is, therefore, reversed, and a reference 
 ordered accordingly. 
 
 Johnson and O'JSTeall, Js., concurred. 
 
 *Fripp us. Talbird. r*14'> 
 
 A deed or marriage settlement which is good between the parties, but void as to 
 creditors for the want of a schedule, or for not being recorded, is nevertheless 
 valid as to creditors until they choose to avoid it bj^ seizing the property, and the 
 party in possession under it will not be bound to account for rents and profits 
 during the time such deed was regarded as valid. [*143] 
 
 A wife, being entitled to a life estate in certain negroes, bad them settled to her 
 separate use by marriage settlement which had no schedule annexed and was 
 not recorded; the husband died, the wife surviving, who administered on his 
 estate, received her portion of it, married a second time, and died: on a bill filed 
 by the creditors of the first husband against the second husband, it was held, 
 that the life estate of the wife in the negroes, was not assets for the payment of 
 the debts of her first husband, and his "creditors were not entitled to au account 
 for their possession by the wife after the death of her first husband. [*143] 
 
 Creditors may follow assets in the hands of legatees or distributees and compel 
 them to refund: and the property may be followed in the hands of one to whom 
 it has been transmitted on the death of a legatee or distributee; there is no limit 
 to this right except that of time. [*144] 
 
 Mary Bell, under her father's will, was entitled to a number of negroes 
 for life. She married William Palmer, and the negroes were settled to 
 her use, but there was no schedule annexed to the deed, and the deed 
 was not recorded. Palmer and Isaac Perry Fripp, joined one William
 
 100 SOUTH CAROLINA EQUITY REPORTS. [*142 
 
 Barns, as his sureties in two administration bonds on the estates of 
 Richard and Sarah Reynolds. In November, 1817, Pahner died — his 
 widow administered — she sold his estate in 1818, and nine negroes were 
 bought in, and retained by her. The next of kin bought to the amount 
 of his share, and gave an indemnity bond. The debts of Palmer were 
 not then paid. In 1822 she married John Talbird, who acquired in her 
 right the nine negroes above mentioned, and also those bequeathed by 
 her f^ither. She died in 1825, and administration of her estate and also 
 of her first husband's, was granted to John Talbird. 
 
 "William Barns committed a devastavit — and died in November, 1821, 
 leaving John Barns his executor. Administration de bonis non, of the 
 estates of Reynolds, was committed to Robert Oswald, and on a bill 
 filed by him against John Barns, executor of William Barns, a decree 
 was given against Barns for $6,669 50. Oswald sued on the administra- 
 tion bonds against Fripp, and he was compelled to pay $5,454 66 ; he 
 died, having appointed the plaintiff his executor. 
 
 The bill is filed by Perry Fripp, executor of Isaac Perry Fripp, 
 against Talbird, as administrator of William and Mary Palmer, for au 
 account of their estates, and contribution ; and against John Barns, for an 
 account of the estate of William Barns. 
 
 The Court ordered a reference, and the Commissioner at Coosawhatchie 
 took an account, in which he charged Talbird with the nine negroes of 
 Palmer that came to his hands, and with their hire ; also with the hire of 
 the negroes which his wife held under her father's will and the settlement, 
 as well before his marriage with Mary Palmer as afterwards. 
 *1 1'^l *The Court confirmed the report ; from the decree, as contained 
 ^-^ in the order of reference and confirmation, the defendant Talbird 
 appeals — because, 
 
 1. He is not liable for any debts contracted by his wife, before mar- 
 riage ; no decree having been obtained against him in her life time. 
 
 2. The negroes that came to his hands by virtue of his marriage with 
 Mary Palmer, are not assets to pay the debts of Palmer. 
 
 3. The creditors of Palmer could not have an account of antecedent 
 hire for those negroes which she held under the settlement — much less 
 can they have such an account from her husband after her decease. 
 
 Pettigru, for the appellant, commented at length on the grounds 
 taken, and cited and relied on 1 Schoals & Lefroy ; Toller's Law Ex. 
 282 ; Coleman v. The Duke of St. Albans, 3 Yes., Jr., 375 ; Higgins 
 V. York Buildings, 2 Atk. 107. 
 
 Treville, contra, referred to 1 Sch. & Lef. 269 ; Padgett v. Hoskins, 
 Prec. Ch. 431 ; 1 Eq. Rep. 427. 
 
 Habper, J. There is no question with respect to the negroes Avhich 
 Mrs. Palmer derived under her father's will ; they have been disposed of 
 according to the provisions of the will, and I do not understand them to 
 be in the defendant's possession. With respect to the hire of those 
 slaves which the Commissioner has reported, and which constitutes the 
 defendant's third ground of appeal, I am of opinion the complainant is 
 not entitled to any account. Admitting the marriage settlement of
 
 *143] CHARLESTON-, APRIL, 1833. 101 
 
 Palmer to have been void as to creditors, for want of a schedule, it was 
 good as between the parties themselves. 
 
 When it is said that a deed, good between the parties, is void as to 
 creditors, there is perhaps a want of exact precision in the language. 
 They may treat it as void. They are not compelled to institute any 
 legal proceeding to avoid it, but may seize the property, as if there were 
 no deed. But until they do seize the property, the deed remains 
 perfectly good. There is no case in which a *person not a trustee, p^, . 
 has been held liable to account for the rents and profits of his own •- 
 property. When a legacy is ordered to be refunded, it is without 
 interest : Gettins v. Steele, 1 Swan 200 ; a mortgagor in possession, 
 though the legal title be in the mortgagee, is not accountable for rents 
 and profits. Higgins v. The York Building Company, 2 Atk. lOt ; 
 Mead v. Orrery, o Atk. 244 ; Coleman v. The Duke of St. Albans, 3 
 Ves. 32. In a case decided by myself as Chancellor, at Columbia, I 
 held, after very full consideration, that an heir-at-law in possession, was 
 not accountable for rents and profits; it would operate hardship, 
 approaching the effect of fraud, to make one account for profits which he 
 may have expended, in the just confidence of their being his own. 
 
 With respect to the defendant's first ground of appeal, it is not con- 
 tended on the part of the complainant, that any assets of the estate of 
 his wife came into the defendant's hands after her death ; nor that a 
 husband is liable for the debt or devastavit of his wife, contracted or 
 committed before the marriage, in respect of her property which he has 
 acquired by the marriage, when his liability has not been fixed during 
 the coverture. The claim is to follow the specific assets of the estate of 
 Palmer, in his hands. The wife's life estate in the negroes included in 
 the marriage settlement, was claimed as suc^h assets. I have already 
 expressed the opinion that they could not be so regarded. After the 
 death of her husband, they were her own property, and after her second 
 marriage, her life estate vested in the second husband. 
 
 But with respect to the nine negroes derived from the estate of Palmer, 
 I am of opinion that they may be followed as assets of that estate. 
 There is no doubt about the general rule, that if an executor or adminis- 
 trator proves insolvent, creditors may follow the assets in the hands of a 
 legatee or distributee, and compel them to refund, even although the 
 executor may have retained sufficient assets to pay the debts and wasted 
 them. 1 Yern. 94 ; 2 lb. 205. It was said that when the distributee 
 has died and transmitted the property to others, this is too far to follow it : 
 *I know of no such limit to the right. In the anonymous case, 1 r*245 
 Yern. 162, the legatees of an executor, who had wasted his 
 testator's estate, were compelled to refund, by a creditor of the first testa- 
 tor. There is no limit in such case, but that of time. In the case of 
 
 Miller v. , decided by myself, and the decree affirmed by this Court, 
 
 I held that a legatee who had received his legacy, might protect himself 
 by the statute of limitations. But the statute cannot avail the defendant 
 in this case, the complainant's cause of action arose just before the filing 
 of the bill. It was argued that the other distributee of Palmer ought to 
 have been made a party, and to refund in proportion. If Mrs. Palmer 
 had been merely a distributee, and not an administratrix, there might be 
 something in this. If she were living, the complainant's bill would be
 
 102 SOUTH CAROLINA EQUITY REPORTS. [*145 
 
 properly against her alone ; the demand would be established against 
 her, as administratrix, and payment enforced out of this property, or any 
 other in her possession. 
 
 Her personal representative stands in her stead. It would only be in 
 the event of her insolvency, that the complainant would be authorized to 
 go against the other distributee. Having paid a debt which had 
 unexpectedly arisen, she might compel the other distributee to refund 
 rateably. It appears, too, that she took a bond of the other distributee, 
 to refund in the event which has happened. Of this she might have 
 availed herself, and so may her representative now do, unless it be true as 
 stated, that she received assets of the estate over and above her distribu- 
 tive share, sufficient to satisfy this demand. If this be so, she can never 
 have any claim for contribution against the other distributee. 
 
 It is ordered and 'decreed, that the report of the Commissioner be con- 
 firmed, so far as respects the nine slaves in the hands of the defendant, 
 derived from the estate of Palmer, but in other respects overruled, and 
 the order confirming the same reversed. 
 
 Johnson and O'Xeall, Js., concurred. 
 
 ^, ,„-, *Mary Motte vs. John S. Schult and Francis T. Motte, 
 -I Trustees. 
 
 A Court of Equity may decree between co-defendants, on evidence arising from 
 pleadings and proofs tietween plaintiffs and defendants. [*146] 
 
 O'Neall, J. Upon looking into this case, it appears that the plaintiff 
 is the cestui que trust of the defendants, and claimed from them an 
 account and investment of the proceeds of four negro slaves, sold by 
 them under the order of the Court of Equity. The defendant Francis 
 T. Motte, received of the proceeds of said sale $739 43, by applying that 
 sum to the payment of his individual debt to his co-defendant, and gave 
 to him as trustee, his bond for the payment of that sum. To secure the 
 payment of it, he gave him a mortgage of several negroes, which he had 
 previously mortgaged to Schult for the payment of his individual debt. 
 After some time, Schult foreclosed his mortgage by a seizure of the 
 mortgaged slaves, and sold them in satisfaction of his own and the trust 
 debt, except one who died in jail before any sale was effected. The 
 debt to himself was entirely satisfied, and upon that to the trust estate, 
 a balance was left of $293 55. On the reference before the Com- 
 missioner, the defendant Schult being advised, very properly, that he was 
 eventually liable for this sum to the cestui que trust, paid it, and claimed 
 a decree for the same, against his co-defendant Motte. The Chancellor 
 gave a decree in his favor, and the question now is, whether the Court 
 possessed the power of making the decree between co-defendants. In 
 the case of Chalmey v. Lord Dunsany, 2 Sch. & Lef. 710, Lord Redes- 
 dale says, " but it seems strange to object to a decree because it is 
 between co-defendants, when it is grounded on evidence between the 
 pUiintiffs and the defendants. It is a jurisdiction long settled and acted
 
 *146] CHARLESTON, APRIL, 1833. 103 
 
 on, and the constant practice of a Court of Equity ; so much so, that it 
 is quite unnecessary to state any case in its support." At page 718, 
 Lord Eldon states the rule still more strongly, " when a case is made out 
 between defendants by evidence arising from pleadings and proofs 
 between plaintiffs and defendants, a Court of Equity is entitled to make 
 a decree between the defendants — further, *my Lords, a Court of r^-i^n 
 Equity is bound to do so. The defendant chargeable has a right L 
 to insist that he shall not be made a defendant in another suit, for the 
 same matter that may then be decided between him and his co-defendant. 
 And the co-defendant may insist that he shall not be obliged to institute 
 another suit, for a matter which may be then adjusted between the de- 
 fendants. And if a Court of Equity refused so to decree, it would be 
 good cause of appeal, by either defendant. " 
 
 These views of two of the greatest Chancery lawyers, on a point made 
 for the reversal of the decree, were acquiesced in as correct, by the House 
 of Lords, including Lord Erskine, the then Lord Chancellor, and the 
 decree affirmed. This authority settles the rule, that a Court of Equity 
 may decree between co-defendants ; and the only limitation to this power 
 is, that the decree must be upon evidence "arising from pleadings and 
 proofs between plaintiffs and defendants." It is necessary, therefore, to 
 inquire, in this case, whether the decree is made upon evidence arising 
 from the pleadings and proofs between the plaintiffs and the defendants. 
 
 In equity, trustees are primarily liable each for his own acts ; they 
 may be made jointly liable, so far as they have concurred in any act. 
 This joint liability is, however, alone to the plaintiff — as between them- 
 selves, each is bound for whatever he has received, and for his share of 
 the amount recovered against them for any improper joint act. Indeed, 
 in equity, I regard all liabilities as in the first instance several ; that is, 
 each must account for his wrongful act, and another who may be also 
 liable for it, on account of his concurrence in or assent to it, if he received 
 no benefit from it, stands as a guarantor or security to make it good, in 
 the event of the actor being unable to pay. The pleadings in this cause 
 make the question, how much were the defendants liable to account for 
 separately, or jointly, to the plaintiffs ? I say they make this question, 
 because this is the legal effect of a bill against trustees for an account. 
 The proof under these pleadings, was to show the amount received by one 
 or *both of these defendants. The proof on which the defendant r*]^|g 
 Motte is made liable to his co-defendant Schult, was adduced to '- 
 fix their joint liability, by showing that although Motte actually received 
 the money by applying it to his private debt, yet that Schult concurred in 
 this arrangement, and actually took an insufficient security for the pay- 
 ment of the sum so received by Motte, to the trust estate. 
 
 It is therefore ordered and decreed, that the decree of Chancellor 
 Johnston be affirmed. 
 
 Johnson, J., concurred. 
 
 Harper, J., absent. 
 
 Lance, for the appellant. 
 
 Finley, contra.
 
 104 SOUTH CAROLINA EQUITY REPORTS. [*148 
 
 Ex parte, Virginia Galluchat and her minor children. 
 
 The Court of Equity has no power to substitute an executor in the place of another ; 
 
 but where an executor has removed from the State, leaving his cestui que trusts 
 
 and the trust estate, the Court will, on the application of the cestui que trusts, 
 
 appoint a receiver.(a)[*150J 
 Qucere. — Can the Ordinary appoint an administrator, where the executor had made 
 
 probate and gone without the State ? 
 
 This was a petition for the substitution of a trustee, under the follow- 
 ing circumstances : — The Rev. Joseph Galluchat, by his will dated at St. 
 Augustine, on the 1st January, 182.5, among other bequests and provisions 
 directed as follows, "all the rest, remainder and residue of my property 
 and estate, shall be vested in some safe and productive stock, the interests 
 and profits of which I give to my wife Virginia, during her lifetime, or so 
 long as she shall remain my widow." It was further provided, that if 
 either of the testator's children, during the widowhood of his wife, should 
 arrive at full age, or marry, then his said widow should be authorized, at 
 her discretion, to give such child a portion of the estate ; and at the death 
 of the widow, the rest and residue of the estate was to be equally divided 
 *14Q"1 '^^tween the children of the testator. The *executors appointed 
 -J by the will are Dr. S. H. Dixon and Duke Goodman, of whom 
 the latter alone ever qualified or acted iu the management of the 
 estate. At the time of filing the petition, the residue of the testa- 
 tor's estate consisted of a bond and mortgage of the petitioner, (Mrs. 
 Galluchat) taken for a loan made to her by the executor, under the 
 authority of the Court, and also of fifty-seven bank shares. It also 
 appeared that the said Duke Goodman, the executor, had recently left 
 the State, and removed to Mobile in the State of Alabama, where he for 
 the future will reside permanently, Before he left the State, he accounted 
 fully before the commissioner for his management of the trust estate, 
 under the will of Mr. Galluchat; and since his determination to settle in 
 Alabama, he has written to request that he may be released from the trusts 
 imposed on him under said will. The commissioner of the Court, Mr. 
 Gray, also expressed in writing his willingness to be substituted in his 
 stead, as the trustee of the petitioners. The petition was presented in 
 behalf of the widow and minor children of Mr. Galluchat, and prayed 
 for the said substitution of the trustee. It was rejected by Chancellor 
 Johnston, on the ground that he had not power to grant it ; that if Mr. 
 Goodman chooses, he may appoint an attorney to act for him under the 
 irusts confided in him as executor by the will, but that the Court had no 
 power to discharge him, and appoint or substitute another. A motion 
 is now made to reverse this decree, on the ground that under the circum- 
 stances of the case the chancellor has authority, and ought to grant the 
 prayer of the petition. 
 
 O'Neall, J. It appeal's that when an executor is resident out of the 
 State, and has never made probate of the will, the ordinary may grant 
 administration cum testamento annexu durante absentiu. 
 
 (a) Haigood v. Wells, ante 59.
 
 *149] CHARLESTON, APRIL, 1833. 105 
 
 In 4 Mod. 14, (1090) sci. fa. was brought by J. Hodge, administrator 
 of A. Hodge, during the absence of N. Hodge, upon a judgment recovered 
 in the Court of King's Bench, upon which there was a writ of error 
 brought in the *Exchequer Chamber, and judgment aflfirmed ; it r:^^rr. 
 was, among other things, objected, that the ordinary had no L 
 common law power to appoint — that his power was by statute ; but the 
 objection was overruled by Slater v. May, 2 Lord P^ay. 1071, recognises 
 the power of the ordinary to appoint an administrator durante absentia, 
 when the executor is beyond the realm. 
 
 The Stat. 38 G. 3, c. 87, gave the ordinary power to appoint an admin- 
 istrator, when the executor had made probate, and gone without the 
 realm. Lord Alvanley's judgment in the case of Taynton v. Hannay, 
 3 B. & P. 30. Whether the ordinary may not, in this State, exercise a 
 similar power, it is not now necessary to examine. A case involving 
 some such question, was, it is believed, decided some years ago in Colum- 
 bia, and it is therefore intended to leave that matter perfectly open for 
 future examination. In any event, whether the ordinary has or has not 
 the power to appoint, there can be doubt that the Court of Equity may, 
 in some shape, give relief to the parties in interest, where the executor 
 has abandoned his trust, and removed from the State ; Buchanan v. 
 Hamilton, 5 Ves. 722. I agree, however, with the Chancellor, that this 
 Court has no power to substitute another in the place of, and to act as, the 
 executor of the testator. The act of '96, for the substitution of a trustee, 
 does not apply to such a case. It is true, an executor is a trustee, yet it 
 is not by this general name he is distinguished and known in our acts of 
 the legislature ; he is always called an executor, as will be seen by refer- 
 ring to all acts in relation to executors or administrators. The separation 
 of executors from trustees, who have no specific legal name, is clearly 
 made by the act of 1745, providing for the compensation of executors, 
 administrators, guardians or trustees, in the discharge of their respective 
 duties and trusts. The act of '96 applies to trustees created by deed or 
 will, to whom estates, real or personal, are conveyed or devised to be 
 held for, assigned to, or managed for, another. The executor is a trustee 
 known by a specific name, designating his office, and is not embraced by 
 the general term trustee, used in the act. His is a general trust — their's 
 special. His authority *and duty arise both from law and the r*i5i 
 will — their's from the terms and object of their appointment. 
 
 In this case it appears, or rather I so understand from what is stated, 
 that the bank stock stands on the books of the bank, in the name of the 
 executor ; and that the bond and mortgage of Mrs. G-alluchut are also 
 to him. He has left the scrip for the bank stock, and the bond and 
 mortgage, with two of his friends, to be deposited for safe-keeping in the 
 Planters' and Mechanics' Bank. No person, so far as I am able to dis- 
 cover, has any authority from him to recover the dividends of the bank 
 stock, or to see that the security for the payment of the bond, the pro- 
 perty mortgaged, is not aliened or removed. Under these circumstances 
 the question is, will the Court not interfere, both for the preservation of 
 the trust fund, and for the correct appropriation of the income ? As long 
 as the executor remains within the jurisdiction of the Court, the Court 
 would not, unless under very extraordinary circumstances, deprive him of 
 the management of the trust ; yet when he removes from the State, will
 
 106 SOUTH CAROLINA EQUITY REPORTS. [*151 
 
 the Court permit him either to remove the trust estate, or manage it ? 
 His removal places him bej'ond the process of the Court, and he is no 
 longer liable to account to it. His removal of the trust estate might 
 enable him to defeat the trust, and his management of it by attorney, 
 might place it in irresponsible hands, and have the same effect. In some 
 cases, as when the executor and his cestui que trusts remove together, 
 the Court would permit him to remove the trust estate, and it may be 
 that under circumstances showing that it was for the benefit of the estate, 
 the Court would not interfere to prevent the attorney of an executor who 
 has removed from the State, from managing the trust estate. 
 
 But generally, when an executor removes from the State, leaving both 
 liis cestui que trusts and the trust estate in the State, it is the duty of 
 the Court of Equity, on the application of the cestui que trusts, to 
 appoint a receiver. For there would, in such a case, be an abandonment 
 of the trust, voluntary, it is true, on the part of the executor, and which 
 j^l rc)n cannot therefore benefit him, but which *the Court will take care 
 "^ shall not prejudice the cestui que trusts 
 
 In this case the executor Goodman appears to have acted in good 
 faith ; he fully accounted under the order of this Court, and invested 
 the balance of his testator's estate agreeably to its order. He, as well 
 as the petitioners, has asked the appointment of some one to act in his 
 place. The commissioner, Mr. Gray, is the usual and proper person to 
 bo* appointed receiver, and he has consented in writing to act in the place 
 of Mr. Goodman. I think that the Chancellor, nistead of dismissing the 
 petition, ought to have appointed Mr. Gray the Commissioner, receiver 
 for the petitioners. 
 
 It is ordered and decreed, that the decree dismissing the petition be 
 reversed ; that James W. Gray, the Commissioner of this Court, be ap- 
 pointed receiver of the petitioners ; and that upon the executor, Duke 
 Goodman, transferring the bank stock, and assigning the bond and mort- 
 gage of Mrs. Galluchat, to the said receiver, he (the said Duke) be dis- 
 charged from any future liability in relation to the same. . 
 
 Johnson, J., concurred. 
 
 Harper, J., absent. 
 
 Ux parte, S. W. Leith, executor of "Wm. Patterson. 
 
 Where a testator, by his vrill, devised, viz. : " all the residue and remainder of my 
 real and personal estate, wheresoever situated, to be equally divided in the fol- 
 lowing proportions, that is to say, two shares to my deceased sons' (William and 
 James) children, to be equally divided among them:" it was held, that all the 
 children of William and James took equally ^jer cajnta.\_*l5Z^ 
 
 The Commissioner having been directed to settle with the guardians of 
 the children of William and James Patterson, legatees under the will of 
 William Patterson, deceased, submitted to the Court the following clause 
 of said will, and requested the opinion of the Court, for his direction in 
 making partition among the legatees.
 
 *153] CHARLESTON, APRIL, 1833. 107 
 
 *" All the residue and remainder of my real and personal estate r*ico 
 wheresoever situated, to be equally divided in the following pro- L 
 portions, that is to say ; two shares to my deceased sons', William and 
 James', children, to be equally divided among them," &c. 
 
 The question submitted to the Court, is, whether the three children of 
 William are to receive one share, and the two children of James the 
 other share, or whether the two shares are to be thrown together, and 
 then divided equally between the said five children. 
 
 Harper, J. {sifting as Chancellor.) I am of opinion that under 
 the devise to the children of William and James, the children of those 
 sons of the testator take equally and jjer capita, and it is decreed ac- 
 cordingly. 
 
 From this decree an appeal was taken. 
 
 Mazyck and Frost, for the appellants. 
 Bailey, contra. 
 
 Johnson, J. If the clause of the will out of which this question arises, 
 be interpreted according to the natural import of the terms used, there 
 would seem to be no doubt that they must operate as a devise or bequest 
 of the testator's estate, to be divided between the children of his deceased 
 sons, William and James, per capita, and not per stripes. They are 
 described as one, and not several classes. It is like the case of Butler 
 and Straten, 3 Bro. Ch. Ca. 367, where it was held, that under a bequest 
 to the descendants of two persons, all their descendants, as well grand- 
 children as children, took per capita. This conclusion is strengthened 
 by the disposition which he makes of the remaining third part of this 
 legacy ; that, the testator directs, shall be equally divided amongst the 
 children of his son John C. who was still living, and shows that the testa- 
 tor understood the necessity of separating them into classes, where he in- 
 tended they should take per capita. The same thing occurs in the first 
 clause of the will, and even more strikingly, " I give to my grandchildren, 
 all my household furniture, to be equally divided amongst them, that is 
 *to say, one share to the children of my deceased sou William, r*]^54 
 one share to the children of my deceased son James, and one share 
 to my son John's children;" and this has been relied on by the counsel 
 as furnishing an interpretation of the devise of the residuum, but I think 
 the converse follows. If he intended to make the same disposition of the 
 residuum, that he had done of the household furniture, he would have 
 used the same phraseology. His having changed it, is a^ circum- 
 stance to show that he did not intend to make the same disposition ; and 
 I contend, therefore, that he intended precisely what he has expressed, 
 that two-thirds of the residue of his estate should be equally divided 
 amongst the children of his deceased sons William and James. 
 
 Motion dismissed. 
 
 O'Neall, J,, concurred.
 
 * 
 
 155] 
 
 108 SOUTH CAROLINA EQUITY REPORTS. [*154: 
 
 Samuel Cordes, and others, v. "Wm. Ardrian, and another. 
 
 Where the testator bequenthed, viz. : " to my son Thomas and to him and his heirs 
 and assigns forever, the following negroes, [naming them] and should he die 
 ■without lawful issue, the said negroes shall return to my other surviving chil- 
 dren;" Held, that the limitation over was good [*155] 
 
 It has been the constant practice of the Court of Equity, to require security for the 
 forthcoming of property on the termination of a life estate, or on any other event 
 ■when the rights of remainder-men or reversioners spring up, whenever those 
 rights appear to be in danger. (aj[* 157] 
 
 The will of Mrs. Charlotte Cordes, contains the following clause : " I 
 give and bequeath to my son, Thomas Evans Codes, and to him and his 
 heirs and assigns forever, the following negroes ; Mollj^, Chane, Harriet, 
 Maria, Solomon, Feb, Amy, Gabriel and Juliana, together with the pre- 
 sent and future issue of the females, and should he die without lawful 
 issue, the said negroes shall return to ray other surviving children." 
 
 Two of these negroes (Maria and Solomon) were levied on and sold 
 under an execution against Thomas Evans Cordes, and purchased by the 
 defendant Ardrian. Notice was given at the time, of the plaintiff's claim. 
 The plaintiff's, the children of Mrs. Cordes, claim the slaves under the 
 above clause of her will, in the event of the death of *Thomas 
 Evan Cordes without lawful issue ; and they filed this bill to en- 
 join the defendant from disposing of the negroes purchased by him, and 
 to compel him to give security for their forthcoming to answer their 
 claim. 
 
 An injunction was granted by th« Master. 
 
 The defendant, Ardrian, in his answer, insisted that Thomas Evans 
 Cordes took an absolute estate in the negroes ; and if he did not, that he 
 had purchased his life estate at sheriff's sale, and had a right to dispose 
 of it at pleasure : he also contended that the injunction should be dissolved, 
 because the bill was not sworn to by the plaintiff", but by (Richard Teas- 
 dale) a stranger to the proceedings. 
 
 Chancellor Johnston, on a motion made before him at chambers, dis- 
 solved the injunction, on the ground that the bill was not properly 
 sworn to. After its dissolution, the defendant sold his interest in the 
 negroes. 
 
 The case afterwards, came to a hearing at Charleston, January, 1833, 
 and the following decree was delivered. 
 
 De Saussure, Chancellor. The briefs of the bill and answer state 
 the case and make part of this decree. Two questions arise in this case. 
 The first is, whether the limitation over in the will of the late Mrs. Char- 
 lotte Cordes, mother of the complainants, is within the prescribed limits, 
 and therefore good ; or whether the limitation is too remote, and void ? 
 The words in the will are, " I give and bequeath to my son, Thomas 
 Evans Codes, and to him and his heirs and assigns forever, the following 
 negroes : — Molly, Chane, Harriet, Maria, Solomon, Feb, Amey, Gabriel, 
 and Juliana, together with the present and future issue of the females, and 
 should he die without lawful issue, the said negroes shall return to my 
 
 (a) See Hinson v. Pickett, ante, 44 ; Clark v. Saston, 74 ; Pringle v. Allen, ante, 137.
 
 *155] CHARLESTON, APRIL, 1833. 109 
 
 other surviving children." This whole subject is questio vexata; many deci- 
 sions have been made in the English Courts which are not at all reconcil- 
 able. In our own Courts it has been much mooted — without goino- 
 through the mass of them, it may be sufficient to notice a few of them. 
 In Guerry v. Yernon, 1 N. & M'C. 69, decided in 1818, there was a be- 
 quest by a testator of two female slaves and their increase, to his daughter, 
 Florida Guerry, "but in case my daughter,* Florida Guerry, r-j-ir^ 
 should die without heirs of her body, then the said negro girls, L 
 Isabel and Hannah, to return to my son Isaac Guerry, and if my son, 
 Isaac Guerry should die without issue, then the said negroes to return to 
 my son James Walker's children." The daughter Florida survived her 
 father, married and died without leaving any issue alive at her death. 
 That learned judge and distinguished citizen, Mr. Cheves, delivered the 
 opinion of the whole Court, that the limitation over was too remote 
 and void. 
 
 In Henry v. Felder, 2 M'C. Ch. 333, decided by the Court of Appeals 
 in 1827, the words of the bequest were as follows, "I give and bequeath 
 to Elizabeth Conlietle, a negro girl named Dinah, to her and the heirs 
 of her body lawfully begotten forever, but on failure of issue, to go to the 
 eldest child of my daughter Nancy Connor." Chancellor Thompson held 
 the limitation to be too remote and void, and the Court of Appeals in an 
 elaborate argument sustained the decree. These then are cases where 
 Court guarded against limitations of too great an extent, and declared 
 them void. 
 
 In the case of Treville v. Ellis, (unpublished manuscript case) the tes- 
 tator, after giving to his children different portions of property, goes on to 
 say, " It is my will and desire, that shguld any of my children die without 
 lawful heirs of their body, that then their part or division of my estate 
 shall be divided equally between the surviving children, share and share 
 alike." The Chancellor (De Saussure), held the limitation over too re- 
 mote and void. The Court of Appeals held the limitation over to be 
 good, and reversed the Chancellor's decree. In Stephens v. Patterson 
 executor of King (manuscript case), decided in 1828, the words of the 
 will were " I give and bequeath to my daughter Mary, my negro woman 
 named Rose, together with her increase, to her and the heirs of her body, 
 but should she die without lawful issue, then the said negro girl Rose to 
 go back and be equally divided among the survivors of my children afore- 
 mentioned." Chancellor De Saussure decreed that the limitation over 
 was too remote and void. The Court of Appeals after an elaborate 
 *argument decided that the devise over was good, and reversed r^^ST 
 the decree of the Circuit Judge. It appears to me that the two 
 decisions, of Treville and Ellis, and particularly of Stephens and Patter- 
 son, are so entirely applicable to the one we are considering, that they 
 must govern it. It must therefore be decided, that the limitation over is 
 good, and that the complainants will be entitled to the slaves in question, 
 on the death of Thos. Evans Cordes without lawful issue. 
 
 The second question in the case is, whether the complainants are en- 
 titled, under the circumstances of the case, to security for the forthcoming 
 of the slaves in question, after the death of Thos. Evans Cordes. The 
 circumstances are as follows. The legatee Thomas Evans Cordes, who 
 was in possession of the slaves, being in debt, a creditor levied his execu-
 
 110 SOUTH CAROLINA EQUITY REPORTS. [*157 
 
 tion on two of the slaves bequeathed to him ; a sale was made under the 
 execution of the two slaves (Maria and Solomon), and William Ardi'ian 
 one of the defendants, became the purchaser ; notice had been given at 
 time of sale, by Mr. Pettigru, of the interest of the comyjlainants, so that 
 he purchased with a knowledge of those interests, and that he wias buying 
 a law suit. The complainants, fearful that all the slavesin the same situa- 
 tion may be sold and scattered over the country, or even carried out of the 
 State, insist on having their interests secured, for the production and de- 
 livery of the slaves, on the event occurring which would entitle them to 
 possession. It has been the constant course of the Court to require se- 
 curity for the production of slaves, at the termination of a life estate, or 
 any other contingency when the rights of remainder-men spring up, when- 
 ever those rights appear to be in danger. They appear to be in danger 
 in this case, as Mr. Thos. E. Cordes is in debt and embarrassed, and the 
 property is not only in danger of being sold and scattered for his debts, 
 but it has actually occurred with respect to the two slaves now in question. 
 The sheriff, and Mr. Ardrian the purchaser, were both aj^prized of the 
 ^, ^g-, right of the complainants at the time of the sale. *The dissolution 
 ' -■ of the injunction makes no difference. It was properly dissolved, 
 because not founded on a proper affidavit. But that does not alter the ques- 
 tion of right. The defendants having notice of the right of com|)lainants, 
 were bound to respect it. The sale of the slaves, by the defendant 
 Ardrain after the notice, increases the danger and the necessity. 
 
 It is therefore ordered and decreed, that the defendant William Ardrian, 
 do give bond and security to the satisfaction of the Commissioner, in the 
 value of the slaves, for the production and delivery of the slaves Maria 
 and Solomon, if alive at the death of Thomas Evan Cordes without law- 
 ful issue, on which event the complainants will be entitled to the said 
 slaves. 
 
 The defendant, Ardrian, appealed from this decree, because : 
 
 1. Thomas Evans Cordes took an absolute estate under the will. 
 
 2. The defendant had an unquestionable right to sell his interest in 
 the negroes. 
 
 3. The defendant having sold before the hearing and decree, and 
 this being known to the plaintiffs, he ought not now to be a party to this 
 suit. 
 
 Wilson and Whitaker, for the appellants, on the first ground, cited 
 Henry v. Felder, 2 M'C. Ch. 323 ; and on the other grounds, insisted, 
 that Ardrian, having acquired an interest by purchase, had the right to 
 dispose of his own property without the restraint of any law or judicial 
 proceeding. 
 
 Pettigru and C?'(f^er, contra, on the first ground referred to Stevens v. 
 Patterson (MS. case), and argued, that the defendant, having bought with 
 notice and sold j^cndetite lite, is not entitled to the protection of the 
 Court ; and that it has been the constant practice of this Court to pro- 
 tect the rights of remainder-men or reversioners, when they are endan- 
 gered. 
 
 Pe)- Curiam. We concur in opinion with the Chancellor, for the very 
 satisfactory reasons contained in his decree.
 
 159] CHARLESTON, APRIL, 1833. HI 
 
 *EuNiCB Neufville vs. Mary B. Stuart. [*159 
 
 A contract for the sale of land made by letter-correspondence between the parties is 
 Yalid, and will be enforced if the consideration to be paid, the time of payment, 
 and a description of the premises, appear therein, sufficiently certain to enable 
 the Court to decree a specific performance. [*1G6] 
 
 The defendant in a letter to the plaintifi"'s agent, proposed to purchase a plantation 
 at eight thousand dollars — six thousand dollars in cash, and two thousand dollars 
 in January following, and requested an immediate answer; the agent, by return 
 post replied, accepting the proposal, but added that he presumed the two thou- 
 sand dollars were to bear interest from the date: Held, that this was a contract 
 obligatory on the defendant ; and that the suggestion in the letter of acceptance 
 with respect to interest, did not constitute a new and distinct term, which set the 
 contract afloat [*167] 
 
 The plaintiif in this case, was possessed of a large body of land in 
 Prince William's Parish, District of Beaufort, called Graham's neck, 
 which had been divided into four plantations with a view to sell. One 
 of these tracts containing about eight hundred and sixty-nine acres was 
 designated as the home tract or settlement. The defendant was desirous 
 of purchasing a plantation, and during the autumn of 1830, made inef- 
 fectual negotiation with the plaintiff for one of the five tracts. Upon the 
 plaintiff's leaving Savannah for New York, James L. Pettigru, Esq., of 
 Charleston, was appointed her attorney, with full power and authority to 
 dispose of all or any of the estate on Graham's neck. 
 
 On the 1st of March, 1831, the defendant wrote the following letter to 
 Mr. Pettigru. 
 
 " Mr. Pettigru — 
 
 "*SiR : — I will give you far the settled plantation on which Mr. Neuf- 
 ville resided, containing eight hundred and sixty-nine acres, $6000 cash, 
 and $2000 January, 1832. Should this proposal meet your concurrence, 
 you will oblige me by giving an immediate answer. I have just received 
 Mr. Barnwell's letter, stating that you would take $10 per acre. But as 
 I offer so large a proportion in cash, I hope it will induce you to let me 
 have it at the price proposed, as I do not think the land is worth more, 
 nor would I give any more for it. Having another place in view, I would 
 be glad of an immediate answer. Please to remember me affectionately 
 
 to ; believe me yours, &c. 
 
 (Signed,) Mary B. Stuart. 
 
 March 1, 1831." 
 
 By return mail, Mr. Pettigru gave the following answer : 
 
 Charleston, March 4, 1831. 
 Madam — 
 
 I have to acknowledge your letter of the 1st of March, which came to 
 hand by this day's mail, offering $8000 dollars* for the tract of j-^j^q 
 land, being the settled plantation on which Mr. Neufville resided, 
 containing eight hundred and sixty-nine acres, viz ; $6000 cash, and 
 $2000 in January, 1832. I accept the offer, and will deliver i)os.session 
 as soon as you please. The deed will be signed by Mrs. Xeiifville.as 
 soon as a conveyance can be forwarded to her. I will be ready to receive
 
 112 SOUTH CAROLINA EQUITY REPORTS. [*160 
 
 the $G000 when possession is taken, and your bond and mortgage for the 
 $2000 (with interest, I presume, from date) may be delivered when Mrs. 
 Neufville's deed is delivered to you. You have a great bargain in the 
 place, and will have, I hope, a great deal of satisfaction in the purchase. 
 I have written to the overseer, to prepare for giving you possession, 
 &c., &c. 
 
 (Signed,) J. L. Pettigru. 
 
 Upon the receipt of this letter, the defendant made the following 
 reply. 
 
 March 9, 1831. 
 Mr. Pettigru— 
 
 " Sir : — I am sorry to inform you, that your letter came a day too late 
 — I have made a purchase of Brag's Island. 
 
 Respectfully yours, &c. , 
 (Signed,) M. B. Stuart." 
 
 The complainant considered the two letters above exhibited, as consti- 
 tuting a complete and binding contract ; made preparation for giving 
 possession, and upon the defendant's refusing to take the plantation, filed 
 this bill for specific performance. The defendant answered and pleaded 
 the statute of frauds, insisting that the two letters did not constitute a 
 complete and certain contract, the answer of the complainant's agent 
 including a term, viz. : interest on the §2000 from the date of defendant's 
 bond — not offered by the defendant. 
 
 The case came to a hearing at Beaufort, January Term, 1832, and the 
 following decree was delivered. 
 
 Johnston, Chancellor. The proof satisfies me that there has been no 
 obstruction in the way of the defendant's taking possession ; on the con- 
 trary, there was, and is, a perfect readiness and preparation to let her 
 ^, „,-, into possession. So *far there is no reason against enforcing the 
 -J alleged contract. 
 
 Again, I do not think the defendant can be released from it, if other- 
 wise binding, merely because when she made her offer, she expected to 
 receive an answer earlier than she did. Her letter of proposal to the 
 plaintiff's agent fixed no definite time within which the answer was to be 
 given, nor did it contain any thing calculated to apprise him that she 
 labored under any misapprehension as to the existing run of the mail, so 
 as to notify him that he should not consider the proposal open to his 
 acceptance, unless he could make that acceptance known to her by a 
 given day, Kennedy v. Lee, 3 Meriv. 441-8. She simply required " an 
 immediate answer," so as to put her at liberty, if her offer should be 
 refused, to purchase elsewhere. If " an immediate answer " was given, 
 by which the plaintiff was bound, so that she could not sell to another, 
 the defendant ought also to be bound to complete the purchase. The 
 answer was communicated ))y the return of post ; which was as early as 
 it could be. 
 
 The only difficulty is this : was there a contract ? Can one be made 
 out, by putting t-^gether the defendant's letter, of the 1st, and the answer 
 to it, of the 4th of March, 1831 ? 2 Hov.'s Sup to Ves. jr. 119. Do 
 those letters set forth the subject and terms of a contract, that if put into
 
 *161] CHARLESTON, APRIL, 1833. 113 
 
 the hands of a man of business, he could, by a sound legal interpretation 
 of them, without further instruction, reduce the contract to form ? Ken- 
 nedy V. Lee, 3 Meriv. 451. Do they show a treaty, with reference to 
 which mutual assent can be clearly demonstrated ; or a proposal met by 
 that sort of acceptance which makes it no longer the act of one, but of 
 both parties ? — so closed as to have no essential terms to be afterwards 
 settled ? Stratfor-d v. Bosworth, 2 Ves. & B. 345 ; and note 2 to Brodie 
 V. St. Paul, 1 Yes. 326. Does the answer, properly understood, amount 
 to an unqualified, single acceptance of the terms proposed, without a 
 variation of them, or the introdnction of any new or different term, or 
 terms of a different effect ? Holland v. Eyre, 2 Sim. & Stu. 1 95. 
 
 The subject and terms of contract are explicitly set out in the defend- 
 ant's letter of the 1st of March: the settled plantation, containing eight 
 hundred and sixty-nine acres — $6000 in cash, and $2000 in January, 
 1832. The terms are as distinctly set *out and accepted in the r:}:-t(^c) 
 answer of the plaintiff's agent, if you exclude from that answer L 
 the expression about interest from the date on the $2000. The whole 
 case turns on that expression. 
 
 The defendant had not, certainly, proposed that the $2000 should bear 
 interest from the date, but only to pay the $2000 in January, 1832 ; and 
 would not have become chargeable with interest on that sum, until that 
 time had come round. With what view, then, did the plaintiff's agent, 
 after recapitulating and accepting her proposal, mention this subject of 
 interest ? Did he intend to constitute the payment of interest from the 
 date on the $2000, part of the terms accepted by him? Or did he men- 
 tion it merely in reference to the formal execution of the contract, with- 
 out intending to shake or effect the contract by it ? Did he intend to 
 accejot the terms proposed, whatever might be their legal effect, and to 
 suggest, apart from these terms so accepted, that, notwithstanding he 
 intended to stick by the contract, yet according to his view of its legal 
 effect, the sum mentioned would bear interest from the date ? Or did he 
 again intend, whilst on the one hand he distinctly accepted the terms 
 proposed, to suggest on the other without setting the contract again 
 afloat, that in fairness the defendant ought to pay interest on the 
 $2000 ? 
 
 If he intended to incorporate the matter of the interest with his accep- 
 tance, in such manner as that his principal could not be compelled to 
 convey upon the foot of his acceptance, unless the interest should be 
 paid — if this be the proper construction of his letter, taken all together 
 — then he has accepted one set of terms, when another was proposed ; 
 and not having accepted the terms proposed, the defendant is not bound. 
 The sum which, by her offer, she would be bound for, on the last day of 
 January, 1832, (for she would be entitled to the whole month to make 
 the payment,) would be $2000. The sum accepted for, ($2000, with 
 interest from the date of the correspondence,) would be $2,128. If her 
 undertaking, in the agent's acceptation, were reduced to the =^form r*ig3 
 of a bond, she would^ if she failed to take it up at maturity, be •- 
 liable for interest on $2,128 from the last of January, 1832 ; whereas, 
 by her own offer, she would, in case of failure to pay, only be liable for 
 interest on $2000, from the last of January, 1832. If this be the niter- 
 pretation of the agent's letter, there is no ground for the bill. Gibbs v. 
 Vol. I._8
 
 114 SOUTH CAROLINA EQUITY REPORTS. [*163 
 
 Chrisholme, 2 N. & M'C. 28. The plaintiff cannot enforce payment 
 of the $2,128, because it was never proposed ; nor could the defendant 
 compel execution of titles, because she has never bound herself to pay 
 $2,128, in consideration of which alone has the plaintiff's agent agreed to 
 convey. 
 
 This was the interpretation I at first put on the letter of the agent. I 
 felt inclined towards it for a considerable time ; but I fear I was too 
 much disposed to entertain it, by my conviction, that this is a hard case. 
 Still, although I have, upon reflection, adopted a different construction, 
 my first view comes and goes on my mind : and I shall feel real pleasure, 
 if the Supreme Court should reverse my final decision. 
 
 The agreement itself, its formal execution, its legal effect, and sugges- 
 tions of additions to it, are all distinct things. 
 
 The plaintiff's agent, in the title under consideration, first of all 
 takes up the proposals made to him, distinctly recapitulates them, and 
 then distinctly accepts them. This over, and (as I conclude) considering 
 the bargain closed, he, as a separate matter, takes up the subject of its 
 formal execution ; and here, casually as it would seem, and not as a sub- 
 stantive part of the agreement, mentions the interest. This mention of 
 interest, I am constrained to think, does not touch the terms already 
 accepted by him. It goes no more to affect the terms distinctly offered, 
 and distinctly accepted, than if it had been made in another letter, of a 
 date subsequent to that containing the acceptance. And if the agent had 
 closed his letter of the 4th March with a bare acceptance, and had, the 
 next day, written concerning giving possession, taking bonds, the 
 interest, &c., no one will contend that the contract would not have 
 stood. 
 
 This must be the decision, if we regard the agent, in speaking of 
 interest, as asking directions respecting the formal execution of the 
 contract. 
 
 -s-, p^T * Again, I think the same decision must be made; if we regard 
 ■^ the agent, in mentioning the interest, as intending to confine him- 
 self to the legal effect of the terms he had already accepted. To put the 
 contract by, as it were, he takes the terms up, one by one, and assents to 
 them all. Having bound his principal to these terms, whatever their 
 legal effect might be — having bound her to take the contract " for better 
 for worse," I do not feel at liberty, upon light grounds, to conclude that 
 he meant, by mentioning the interest, to undo all that he had done : and 
 if he meant to speak merely to the legal effect of what he had done, and 
 gave a wrong opinion, that does not alter or undo what he had done. 
 Underhill v. Horwood, 10 Ves. 209, 228. The opinion is wrong, on the 
 contrary, merely because the act done is too valid to be done away or 
 altered. jSTow, to test whether a misconception of the legal effect of this 
 contract entertained by one of the parties at the time of making it, is to 
 vitiate it, let us suppose the bill filed against the party who entered into 
 the contract laboring under the misconception. Would that party be 
 exonerated from his distinct explicit undertaking, merely on the ground 
 of a mistake in law ? Such a doctrine has been once hinted in this Court, 
 and the hint was borrowed from one of the highest sources in the Union. 
 Lownds V. Chisholme, 2 M'C Ch. 463 ; Hunt v. Rousmanier, 8 Wheat.' 
 215-16. It is not, however, a necessary point in the case. I am not
 
 *164] CHARLESTON, APRIL, IS 33. 115 
 
 prepared to acknowledge such a doctrine. Even in criminal cases, every 
 man is held bound to know the law : and if guilty of violating it, will be 
 punished, although he does not know it — even if the punishment extends 
 to life. Lyon v. Richmond, 2 John. Ch. 51, 60. Society cannot go on, 
 if this policy be relaxed. How then, in matters of meum and tuinn, in 
 this Court, or any other, can any one claim exemption for the legal con- 
 sequences of his acts ? 
 
 Once more : the expression about interest, may be regarded as a sug- 
 gestion that although the terms ])roposed were distinctly accepted, and 
 would be abided by, yet, in fairness, interest should be added. Now, if 
 
 A. offer B. in writing, $500 for his land, payable in twelve montlis, and 
 
 B. replies in writing, " I accept your offer, but, nevertheless, when we 
 come to draw your bond, I think you should make it bear interest from 
 the date :" would this suggestion, entirely* distinct from the well r^^i^r 
 understood bargain of the parties, set the contract afloat? I L 
 think not. 
 
 There is one more view : we may regard the agent as accepting the 
 •terms, whatever they were ; but inquiring whether the defendant under- 
 stood herself as offering to pay interest ; and this, with an intention of 
 ascertaining how the bond was to be drawn. In this interpretation of 
 the agent's letter, the contract must stand. 
 
 Upon the whole, I am of opinion the contract is valid. The defend- 
 ant has, however, questioned the plaintiff's title. A reference must.be 
 ordered : on the coming in of the report, a final decree will be pro- 
 nounced. 
 
 It is for the present ordered, that the Commissioner do inquire and 
 report whether the plaintiff has, and can convey to the defendant an un- 
 incumbered and perfect title in fee, to the land described in the bill, as 
 the subject of contract ; in this reference, the plaintiff to be the actor. 
 
 I am inclined to throw the costs on the plaintiff, but shall reserve that 
 question until the coming in of the report. 
 
 Elliott, for the defendant, argued that before the Court would enforce 
 a contract by letter, it must be shown from the letters, and not by 
 evidence aliunde, that an agreement in all its parts has been concluded. 
 The letters must be taken together, and considered as constituting a con- 
 tract complete in itself, and not requiring further terms or explanations. 
 Construe the two letters with each other, and there appears to be some- 
 thing requiring further explanation or stipulation of some sort. The 
 letter of acceptance sets up a new and distinct term from any contained 
 in the proposal, and therefore sets the contract afloat. He cited and 
 commented on Bunch v. Blisby, 2 Madd. 19 ; Stratford v. Bosworth, 2 
 Ves. & Beames, 374 ; 3 Mer. 449 ; 2 Sim. & Stewart, 194. 
 
 Pe.ttigru, contra, insisted that the letter of the defendant contained the 
 terms of a good contract, and it was only necessary that it should have 
 been accepted, to make it obligatory on both parties. This was done in 
 so many words, by the letter in reply. The objection is taken from the 
 words in parenthesis, in regard to the interest : they are in a subsequent 
 part of the letter, after the acceptance, *and form no part of the r*i gg 
 agreement itself. They were used in relation to the execution of *- 
 the agreement already assented to, and as explanatory of its meaning, or
 
 116 SOUTH CAROLINA EQUITY RErORTS. [*166 
 
 as giving a legal construction to the contract. 3 Yes. 265 ; 5 Yin. Ab. 
 527 ; Sugclen's Law of Yeudors, 59, 60 ; 9 Yes. 351 ; Kennedy v. Lee, 
 3 Mer. 451. 
 
 O'Xeall, J. I agree with the Chancellor, that the defendant is bound 
 to perform her contract of purchase. A contract to sell and buy laud, 
 may just as well be made by letters as by any other agreement in writing. 
 The only object of requiring written evidence of such an agreement, is to 
 prevent the possibility of fraud or perjury in setting up loose conversa- 
 tions for contracts ; so that the consideration to be paid, the time of 
 payment, and a description of the property to be sold, appear from any 
 written memorandum signed by the party to be charged, sufficiently 
 certain to enable the court to decree a specific performance, it is all that 
 is necessary. The assent of the parties to these essentials, can just as 
 well be gathered from the proposal to buy, and the acceptance, by letters, 
 as if formal acticles were executed between them. In the case of Ken- 
 nedy I'. Lee, 3 Mer. 449, the Lord Chancellor states the rule to be " that 
 the party seeking the performance of such an agreement, is bound to find 
 in the correspondence, not merely a treaty, still less a proposal for an 
 agreement, but a treaty, with reference to which, mutual consent can be 
 clearly demonstrated, or a proposal met by that sort of acceptance which 
 makes it no longer the act of one party, but of both." According to 
 this rule, which is fully sustained by the cases of Stratford v. Bosworth, 
 2 Yes. & Beames, 340 ; and Huddleston (;. Briscoe, 11 Yes. 583. ; this 
 case was well made out by the letter of the defendant proposing to buy, 
 and that of the plaintiff's agent accepting her proposition. 
 
 The only question made, is whether the letter of the plaintiff's agent 
 did not insist on a new or additional term to the proposal of the defend- 
 ant. I entirely agree with the Chancellor, that such a fact, if it were 
 
 ■■HI-] 
 
 true, would *be fatal to the complainant's claim for a specific per- 
 
 formance. For then there would be no acceptance of the defend- 
 ant's proposal on the part of the plaintiff, nor would there be any assent 
 on the part of the defendant, to the new term. In the language of the 
 Lord Chancellor in Huddleston u. Briscoe, " the letters would not import 
 a concluded agreement." 
 
 But the proposition of the defendant to buy, is distinctly and in terms 
 accepted, upon the terms which she stated. The agent, in another part 
 of his letter, speaking of the execution of titles, the cash payment, and 
 the security for the payment to be made in January, 1832, in reference to 
 the letter, says " I presume with interest." These words were obviously 
 used as his construction of the contract which he had accepted, and 
 which he supposed the defendant to have intended by her offer. But 
 they are not made a condition on which the acceptance is to depend. It 
 is what in common fairness and in the usual course of such contracts, he 
 supposed the defendant to have intended ; still, however, leaving it per- 
 fectly optional to the defendant to admit or deny his construction, with- 
 out affecting the legal effect of the contract, which he had accepted in 
 such terms, and so unconditionally as to prevent the plaintiff from refusing 
 to comply with it. 
 
 In Kennedy v. Lee, the Lord Chancellor says, "I do not mean 
 (because the cases which have been decided would not bear me out in
 
 *1 «^ 
 
 167] CHARLESTON, APRIL, 1833. 117 
 
 going so for) that I am to see that both parties really meant the same 
 precise thing, but only that both actually gave their assent to that pro- 
 position which, be it what it may, de facto, arises out of the correspond- 
 ence." There can be no doubt that both parties in this case, have 
 assented to the proposition, that the defendant should buy the land for 
 $6,000 cash, and $2,000 in January, 1832. The payment of $2,000 in 
 January, 1832, the defendant very probably intended should not bear 
 interest until due ; and the plaintiff, that it should bear interest from the 
 day on which possession was delivered. This, however, after the propo- 
 sition of the defendant was accepted by the plaintiff, was a matter of 
 legal ^construction of the contract to which they had agreed. r-^i/.Q 
 They might differ about it, as widely as they pleased ; one of them L 
 could not by setting up what she had intended, destroy the contract. 
 The legal effect of it, and the intention of the parties, were to be 
 gathered from the terms of the defendant's proposal to buy, which the 
 plaintiff had accepted ; and not from her construction, expressed even at 
 the time, but after she had given her assent to the proposition. 
 
 I am hence satisfied, that the defendant was properly held to be bound 
 to comply with the contract of purchase. 
 
 On the argument here, it was conceded that the plaintiff's title was 
 good, and that there was no necessity to refer that matter to the Com- 
 missioner. That part .of the decree must be therefore reversed. 
 
 It is ordered and decreed, that the complainant deliver to tha Commis- 
 sioner, for the defendant, her deed of conveyance of the land to the 
 defendant, produced on the trial ; that she do also deliver, or tender 
 forthwith, the possession of the land to the defendant. 
 
 It is further ordered and decreed, that the defendant do pay to the 
 complainant the sum of $8,000, with interest on $6,000, from the 5th 
 March, 1831, and on $2,000 from the 1st day of February, 1832 ; and 
 the costs of this case. 
 
 Johnson, J., concurred. 
 Harper, J., absent. 
 
 *P. C. Plumkett, in trust for MarCxAret Wood, v. Ed. Carew, r^igg 
 Assignee of John Lewis. 
 
 The plaintiff made a shipment on joint account with L., who sold and invested the 
 proceeds in merchandise shipped on board the brig Eliza, and gave the plaintiif a 
 written acknowledgment to thisafifect; L. stopped payment, and assigned his 
 estate, including the cargo of the Eliza, to the defendants, as trustees for the 
 payment of certain preferred debts, who sold the same, and applied the proceeds 
 according t« the deed ; on a bill filed by the plaintiff against tlie assignees, Held, 
 that the plaintiff" was an equitable owner of the cargo to the extent of his invest- 
 ment, and that if the defendants had paid away the proceeds with a knowledge 
 of the plaintiff's equity, they were liable to account to him,— Reference ordered 
 to ascertain whether the defendants had paid away the funds, and if so, whether 
 with or without a knowledge of the plaintiff's claim. [*171] 
 The bill states that the plaintiff made a shipment of ninety-seven 
 
 whole, and eighteen half tierces of rice, on joint account with John
 
 118 SOUTH CAROLINA llQUITY REPORTS. [*169 
 
 Lewis, in January, 1820 ; that in March following, Lewis gave him a 
 written acknowledgment, setting forth that the moiety of the sales of the 
 rice amounted to $1,225 75, and that the same was invested in the return 
 .cargo of the brig Eliza, in which the plaintiff was interested to that 
 amount. That on the 4th of August, 1820, Lewis stopped payment, 
 and assigned his estate to Joseph Trescott and Edward Carew. That 
 the cargo of the Eliza came to the hands of the assignees, and they sold 
 it. That he has often applied to the assignees for payment, but without 
 effect, and that they ought to account to him as a part owner of the 
 cargo of the Eliza. The bill contains many other charges ; it was filed 
 the nth of June, 1824. 
 
 Lewis died soon afterwards, and Joseph Trescott, one of the assignees, 
 died. 
 
 The answer of Edward Carew states that he is unacquainted with the 
 dealings between the plaintiff and John Lewis, and knows nothing, 
 except that after the plaintiff's bill was filed, this defendant had some 
 conversation with Lewis on the subject, and to the best of his recollec- 
 tion, Lewis, in a conversation, after the filing of the bill, did not deny 
 that he was indebted to the plaintiff, in tlie sum mentioned in the bill, or 
 in some such sum, but as a general creditor only. That he has no know- 
 ledge of the shipment. That Lewis was half owner of the Eliza, and 
 one-third owner of the cargo. That on the 4th. of August, 1820, he 
 assigned all his estate to the defendant and to Joseph Trescott, for the 
 payment of his debts in the order therein mentioned. That they 
 accepted the assignment, and took possession of the goods and effects 
 which they understood, and were pointed out as his. The brig Eliza was 
 at sea when the assignment was executed. They placed Lewis' sliare of 
 ^jwQ-| the vessel and cargo in the hands of *Napier & Co., for sale, who 
 -' sold them openly and publicly, and though the plaintiff was in 
 Charleston, he made no claim to the cargo, nor even gave notice of his 
 debt ; and the defendant never heard, till after the bill was filed, that 
 Lewis owed him a cent. That the trusts of the assignment were to pay 
 custom house bonds, then promissory notes endorsed by this defendant 
 and the other assignee, Trescott ; and the surplus to the other creditors — 
 but the effects did not pay off the notes ; and there is a large balance due 
 to the assignees. 
 
 The cause came before Chancellor De Saussure, at Charleston, March, 
 1832. 
 
 The plaintiff produced the memorandum referred to in the bill — 
 no other evidence was offered. 
 
 The Chancellor's decree declares that if the cargo of the Eliza came to 
 the assignees' hands, they are bound to pay to Plunkett, as a part owner. 
 And he ordered a reference, to ascertain whether the wliole of the Eliza's 
 cargo came into the hands of t?lie assignees, and what amoun^ is payable 
 to the plaintiff, and to inquire into the fact of the assignment to Mrs. 
 Wood, and in what right Plunkett sues. 
 
 From this decree the defendant appealed, and insists, 
 
 1.^ That Plunkett was a general creditor only ; that his merchant hav- 
 ing invested his money in goods, gave him no lien upon such merchan- 
 dize.
 
 *170] CHARLESTON, APRIL, 1833. 119 
 
 2. That if the plaintiff could have come in as a part owner, he waived 
 his right, by not making his claim before the goods were sold. 
 
 3. That, whether the assignees take a benefit under the assignment or 
 not, the rights of the parties are the same. And that after the assets 
 have been disbursed pursuant to the assignment, the plaintiff can neitlier 
 make the creditors refund, nor the assignees answerable to him out 
 of their own estates. 
 
 4. That the plaintiff's remedy, if any, is by an action at law. 
 
 Pettir/ru, for the defendants, contended, 1. As to the character and 
 effect of the memorandum — it was a mere acknowledgment by Lewis, of 
 his liability and promise to account ; it created a debt, for the enforce- 
 ment of which *an adequate remedy exists at law ; but it vests r^iKi 
 no right, either legal or equitable, in, and creates no lien on, the ^ 
 the cargo. This is not like the case of goods sent to a factor for sale, 
 and found in specie at his insolvency ; for there the title is complete in 
 the shipper; — but here, the bills of lading, invoices, &c., are all in the 
 name of Lewis. In the case of consignor and consignee on a credit sale, 
 the right of stoppage in transitu exists, but it could not avail the plain- 
 tiff when the goods are in the hands of the consignee, and after a sale of 
 assignment of them : 1 Atk. 245 ; 1 Wash. C. C. Rep. 212 ; 6 E. 17. 
 
 2. Admitting that the plaintiff has an equity in the goods, can this 
 equity be set up against the assignment ? Is not the declaration of trust 
 an assignment for valuable consideration ? It must operate as such, or 
 as nothing. Which is to be preferred, the open or the secret assignment ? 
 The acquiescence of the plaintiff in the sale of the goods, shows that he 
 did not regard himself as having an interest in them, and is conclusive 
 against him ; 12 John. 301 ; and the assignee having executed the trust 
 and paid away the funds, should not now be chargeable. 
 
 Hunt, contra. The plaintiff's claim is as joint-owner, and for an 
 account of the sale. The grounds of equitable jurisdiction are, that the 
 property cannot be followed at law, and discovery. The defendants, as 
 the assignees of Lewis, take subject to the equity of the plaintiff, as part 
 owner : and, as to the rule that one standing by and seeing his property 
 sold, is concluded ; it only means, that the rights of the purchaser shall 
 not afterwards be disturbed by him — but the claim here, is for the pro- 
 ceeds of the sales, to which the plaintiff, as part owner, is entitled. 
 
 O'Neall, J. The various objections raised to the Circuit decree, 
 make the following questions. 1st. Is the plaintiff on the case proved 
 on his part, entitled to any relief against the defendants ? 2a. Ji lie is, 
 are the defendants bound to account for the proceeds, if they have paid 
 them away before notice of his claim. 
 
 I am satisfied that the plaintiff is properly in Court, and *entitled j-* j^2 
 to have the benefit of his interest in the cargo of the Eliza, if the 
 fund is still in the hands of the defendants, or if it has been paid away 
 after notice of his claim. This assumes, however, as true, that the riglit 
 of action is in Plunkett in the character in which he sues. This assump- 
 tion may, upon the examination before the Commissioner, turn out not to 
 be well founded, and if so, it is not intended that the defendants should 
 in that respect be prejudiced by it.
 
 120 SOUTH CAROLINA EQUITY REPORTS. [*172 
 
 1. There can, I think, be no doubt as against Lewis, that the plaintiff 
 would have been entitled to the aid of this Court, to have given hira in 
 specie, or in an account, the benefit of his interest in the cargo of the 
 Eliza. For to say nothing of other grounds of equitable cognizance of 
 the case, which I may have occasion to notice hereafter, the legal right 
 to the cargo was in Lewis, and the plaintiff's right to participate in it, 
 rested altogether in agreement. This was clearly an equity. For it is 
 no objection to say, you might have sued on it at law. There are many 
 cases you may sue at law, and yet the jurisdiction in equity is unques- 
 tional)le. This is pretty much the case in all cases of specific perform- 
 ance of contracts ; at law, you may have your remedy in damages ; or in 
 equity, for specific performance. So, when there is a contract to divide 
 property in specie, or to divide the proceeds ; I should entertain no 
 doubt, that on the party's refusing to perform his contract, an action for 
 damages might be sustained at law ; and in equity, that a bill would lie 
 in the one case for a partition of the property, and in the other, for an 
 account of the proceeds. Under the agreement of Lewis, the com- 
 plainant as against him, might possibly have obtained an actual appor- 
 tionment and division of the cargo. If, however, that was doubtful, 
 (which I do not think,) there can be no doubt that he would be entitled 
 to an account of his proportionate share of the cargo. I have said that 
 the legal title was in Lewis, and it may be necessary to assign the rea- 
 sons for this assertion, before I proceed further. The invoice and bills 
 of lading were in his name, and he had the actual possession ; and all 
 these combined together, are more than enough to give a legal title to 
 merchandise. The plaintiff was merely, by a contract on a valuable con- 
 ;(.,Ho-| sideration, entitled to a share, *in proportion to the amount of 
 -■ his funds invested. This gave hira the right in equity and good 
 conscience, to a share of the adventure. The defendants, as regards 
 their legal rights to the«property, stand exactly upon the same footing 
 which Lewis did ; and I apprehend they take it subject to the equities 
 which existed against him, and must account for it as he would have 
 done, unless they have paid away the proceeds before notice. This 
 qualification constitutes the only difference between him and them. For 
 they represent him, and are not entitled to any privileges, (with the 
 exception I have already made) which he could not claim. For the pur- 
 poses of this question, they are to be regarded as volunteers. I proceed 
 now to show, that as against the defendants, the doctrines of the Court 
 of Equity, sanctioned by the authority of repeated decisions, sustain the 
 position that the complainant is entitled to relief in this Court, on the 
 agreement of a proportionate share of the cargo of the Eliza. In the 
 case of Legard v. Hodges, the Lord Chancellor states the general rule 
 as a maxim in equity, "that whenever persons agree concerning any 
 particular subject, that, in a Court of Equity, as against the party him- 
 self and any claiming under him voluntarily or with notice, raises a trust;" 
 1 Yes. jr. 47 8. This, as a general rule, is perhaps a little too broadly 
 stated, for it is not intended by it to say, that a mere personal contract 
 or agreement would create a trust, and give the Court of Equity juris- 
 diction. But if the agreement is intended to operate on a subject or 
 property specifically, so as to create an interest in the thing itself, it 
 would fall properly under the rule. In the case in hand, the defendant's
 
 *173] CHARLESTON, APRIL, 1833. 121 
 
 principal agrees with the plaintiff, that he should have an interest in the 
 brig Eliza's cargo, in proportion to the sum of $1225 57 of his funds 
 invested. This agreement was intended to operate on the cargo itself, 
 and makes the plaintiff" the equitable owner to that extent, and the 
 defendant's principal, a trustee, holding the legal title for the use created 
 by his own agreement. 
 
 This is analogous to the case of a bill filed for an account and distri- 
 bution of prizes captured by a privateer, among the officers, crews, and 
 owner, according to the articles. In such a case there is no doubt of 
 the equity jurisdiction, and *for a precedent of such a case, I refer r-t^^ni 
 to the case of Good v. Blewitt, 13 Yes. 397 ; and for another of a •- 
 similar character, where an account was claimed by officers of the army, 
 of prizes under the King's grant, I refer to the case of Brown v. Harris, 
 13 Ves. 552. The jurisdiction in these cases was sustained on the prin- 
 ciple, that the agreement in the one, and in the other the grant, gave the 
 claimants a right to shares in the prizes themselves, and hence that they 
 were entitled to the account as co-tenants The principle, I take it, 
 reaches this case ; the agreement here, gives an interest in the cargo 
 itself, and in ecjuity, Lewis and the plaintiff are co tenants. The case of 
 Weymouth v. Boyer, 1 Ves. jr. 416, it seems to me is the very case before 
 the Court, and it has the singular advantage of being decided in Chan- 
 cery, by one of the most eminent of the English Law Judges, Mr. Justice 
 Buller, sitting for the Lord Chancellor. Bryant and Tewksbury were 
 indebted to Weymouth ; he pressed Bryant for payment, and he agreed to 
 sell him 45 hogsheads of tolDacco, to be accounted for by him in part of 
 his demand. An invoice was mutually signed with a memorandum of the 
 sale, but before they parted, Weymouth proposing Holder as his factor 
 to sell the tobacco, Bryant objected, and it was agreed that the whole 
 should be sold by Williams, factor for Bryant, and an agreement for this 
 purpose was accordingly signed by both. The l^bacco was subsequently 
 delivered to Williams, under an order from both Bryant and Weymouth; 
 Williams sold the tobacco, and claimed to retain the proceeds for a debt 
 due to him by Bryant and Tewksbury. It was contended there, as it has 
 been here, that the remedy was at law, but the objection was overruled, 
 and the reasons of Mr. Justice Bullei", in support of the jurisdiction, at 
 p. 424, are a full answer to the arguments pressed with so much ingenuity 
 on us in this case. Upon the merits, his views of the case are so directly 
 applicable to this, that they may be stated and used as argument for 
 the plaintiff. 
 
 " I think, upon the whole, this must be considered as a case in which 
 the plaintiff has not the strict legal property, but rests upon an agree- 
 ment to be properly enforced here. I found that, on observations occur- 
 ring upon this invoice,* signed by the plaintiff and Bryant. The rt-i^j^ 
 intention was, that there sliould be an actual sale, and that the 
 property really should pass to the plaintiff ; and that is the purport ot 
 the memorandum made on the paper stating that the plaintiff had bought 
 25 hogsheads of tobacco, specified by numbers, which memorandum was 
 signed by both parties. I should have said that was a transfer of the 
 property, if it had rested there. That was dated 1st July, 1785. But 
 it is apparent upon that, that they altered their plan, and came to a new 
 agreement before they parted, which it was competent for them to do,
 
 122 SOUTH CAROLINA EQUITY REPORTS. [*175 
 
 and the reason was, the question, who should be the factors. The plaintiff 
 had spoken to Holder, Bryant objected to that, and said, ' let them all 
 be sold by Williams, and we will account for the 45 hogsheads,' an dan 
 agreement was accordingly signed for that purpose. That reduces the 
 case, to a case of agreement only, in order to let the friend of Bryant 
 have the selling of the goods. If it rests upon agreement, the plaiutiif 
 cannot go elsewhere." 
 
 The defendant was held liable to account for the proceeds of the sale 
 of the tobacco. The agreement here, as in that case, was intended to 
 convey property to the plaintiff ; but it does not have that eflPcct in law. 
 The plaintiff's rights are in agreement only ; and it follows, that his only 
 relief is in equity; and he is entitled to an account for his share of the 
 proceeds, unless his laches has defeated that right. This brings us to 
 consider the second question. 
 
 2. The assignment is to Carew & Trescott, of all Lewis' estate, 
 including the Eliza's adventure, which is set down at $5,600. It may 
 be that this did not include the plaintiff's interest, and if so, that may 
 possibly present another question, whether the defendants, if they have 
 possessed themselves of the plaintiff's share without any authority from 
 Lewis, would not be, in any event, liable for the proceeds ? If there is 
 any doubt in relation to this matter, the plaintiff may, on the reference if 
 he choose, show that the assignment did not authorize the defendants to 
 ^THn-i take possession of his interest in the cargo. But supposing,* 
 -■ for the present, that the assignment covers his interest, ai'e the 
 defendants liable to account for the proceeds, if they have paid it away 
 under the trusts of the assignment before notice to them of the com- 
 plainant's claim ? The deed of assignment directs the whole proceeds 
 of the assigned property to be applied first to the payment of certain 
 preferred debts, and the surplus, if any, to the payment of such other 
 debts as might be prefefred within six months. The legal estate in the 
 cargo of the Eliza passed to the defendants ; the plaintiff's claim was his 
 equitable interest under the agreement : so soon as this was brought home 
 to the knowledge of the defendants, if they then had the cargo or its pro- 
 ceeds in possession, they became his trustees, and liable to account to 
 him for his interest. But if they had paid away the proceeds before 
 notice, there was nothing in their hands on which the trust could attach. 
 For, it is their possession of that which in equity belongs to the plaintiff, 
 which turns their legal estate into a trust for him. If, before they knew 
 of his rights, they had, in the discharge of their duties, parted with the 
 -fund, they are not liable to account to him for that in which they had a 
 legal estate, without any knowledge of the secret trust in favor of the 
 plaintiff. The facts in relation to this view of the case, can only be 
 ascertained by an examination to be had, on the reference to the 
 Commissioner. 
 
 It is ordered and decreed, that the Chancellor's decree be reformed 
 according to the views expressed in this opinion ; that the order of refer- 
 ence, made by the Chancellor, be carried into execution ; and that the 
 Commissioner do examine and report upon the matter necessary to a 
 correct decision of the defendant's liability to account, under the second 
 question discussed in this opinion, according to the views therein 
 suggested. 
 
 Johnson and Earle, Js., concurred.
 
 *177] CHARLESTON, APRIL, 1833. 123 
 
 *L. E. Dawson v. R. B. Scriven. t^ih^, 
 
 Thomas E. Scriven v. R. B. Scriven. 
 
 The lien of a decree in Chancery, commences from the day on -which it is delivered 
 to the Commissioner, and filed by him,[*177] 
 
 Before Harper, J. (sitting for Chancellor De Saussure), at Coosa- 
 whatchie, January Term, 1833, who made the following report. 
 
 "In the first of these cases, the complainant Lawrence E. Dawson, 
 obtained a decree against the defendant at January Term, 1830. The 
 decree was signed during the sitting of the Court, and execution 
 was lodged 2d February, 1830. In the other case a full hearing 
 was had at the same term, to wit, January, 1830 ; but the case being a 
 very litigated one, and the points numerous and important, the papers 
 were carried home by the presiding Chancellor, and subsequently to the 
 day on which the execution in Dawson v. Scriven was lodged with the 
 sheritf, a decree for the complainant was sent down. From this decree 
 an appeal was made, but was abandoned, in February, 1831. 
 
 " A motion was made before me, at the present term, for a rule or order 
 on the sheriff, instructing him to pay to the complainant, in a rateable 
 proportion, whatever moneys he should make by a sale of the defendant's 
 real estate; on the ground, that the decrees should both be considered as 
 having equal liens, as decrees of the same Term. 
 
 " The motion was refused." 
 
 The complainant, Thomas E. Scriven, appealed from this decision; 
 and renews his motion in the Court of Appeals, on the ground taken in 
 the Circuit Court. 
 
 Bailey, for the appellant. • 
 
 Mazyck and Frost, contra. 
 
 O'IS'eall, J. The case of Blake v. Bolan and others, decided that a 
 decree in equity for the payment of money, " constitutes a lien on land 
 like a judgment at law." It is now necessary, in following out the prin- 
 ciples of that ^decision, to fix the time at which the lien commences, r^j^-rg 
 In considering this question, we can expect but little aid from ad- 
 judications of the English Court of Chancery ; the doctrine of the liens of 
 decrees is peculiar to this State, and is practiced mainly upon the right 
 given by the act of 1185 to the complainant to sue forth a writ in the 
 nature o^aji.fa. to make the estate of the defendant, real and personal, 
 liable in satisfaction thereof. It will, however, be of service in examin- 
 ing the question, to ascertain at what time the decrees of the English 
 Court of Chancery take effect. According to strict practice in England, 
 a decree has only the force of an interlocutory order, until signed and en- 
 rolled: 2 Fomb. on Equity, 198. According to rule, the decree could 
 not be signed and enrolled, until drawn up, and a copy served on the 
 clerk of the adverse party. The decree so drawn up, if not objected to, 
 is entered or recorded, and then put on the file, denoting the terra at 
 which it was pronounced. In the case of Clapham v. riiilips, Finch, 
 169, the Lord Keeper declared, " that the decrees of this Court uuglit to
 
 124 SOUTH CAROLINA EQUITY REPORTS. [*178 
 
 take effect from the time the judgment of the Court was given and the 
 decree pronounced in the cause ; and that the death of the parties ought 
 not to hhider the enrolment thereof in some convenient time : for, other- 
 wise, it might create new trouble and expenses to the party living." This 
 decision, as between the parties to the suit, placed the effect of the decree, 
 as commencing from the time judgment was pronounced in the cause ; 
 but, as against third persons, the decree could have had no effect, 
 except from the enrolment. So, in 2 Fomb. on Eq. 200, it was said "a 
 cause was finally heard, and the Court took time to consider of their judg- 
 ment ; and in the meanwhile the party plaintiff died — the Court gave 
 judgment nunc pro tunc, and ordered that their decree should have rela- 
 tion to, and be entered upon the day that the cause was finally heard, and 
 in this decree the plaintiff had relief," Jones f. LeDavid, Hill. T. 1T91, 
 
 in . . The effect of this was, as between the parties, to make the 
 
 decree operate from the day on which it was heard ; upon the principle 
 ^,Hq-i that judgments at law, after verdict, are permitted* to be entered 
 -' nunc pro tunc, notwithstanding the death of one of the parties. 
 But it never was supposed that a judgment entered nunc pro tunc, could 
 affect the rights of any but the parties to it, before it was actually signed. 
 And so in the cases in Chancery referred to, the decrees take effect from 
 the hearing, or the time the decree was actually pronounced, as may best 
 promote the ends of justice, between the parties ; but against third person, 
 until enrolled, a decree would be interlocutory, and could not operate to 
 their prejudice. 
 
 In this State it is not the practice to enrol the decrees, and it has been 
 held to be unnecessary, for the reason that the Chancellor delivers his 
 decrees in writing, signed by himself, which is equivalent to an enrol- 
 ment. The time when pronounced, as is said in Clapham v. Philips, 
 would seem to be proper point of time from which they ought to take 
 effect. The decree may, as between the parties themselves, or their im- 
 mediate representatives, be ordered to be entered, as of the day on which 
 the cause was heard But this is as far as I am prepared to give retro- 
 spective effect to a decree. 
 
 The lien of a decree, as I have before said, arises from the fact, that by 
 law, the party entitled to a writ of fi. fa., to make the real and personal 
 estate of the person against whom the decree is, liable to its payment. 
 If the right to take out execution is the cause of the lien, can it com- 
 mence until the decree, which authorizes it to be issued, is pronounced ? 
 As long as the judgment of the Court is locked up in the breast of the 
 Chancellor, there can be no lien. There is no sum ascertained, which 
 the party is to pay, and for which his estate maybe made liable. It may, 
 or may not be liable ; and until this uncertainty is ended, it would be vain 
 to talk of the lien of a judgment existing. A recognizance, until es- 
 treated, does not bind land. The State v. Anderson, decided at Colum- 
 bia, December Term, 1831. It is a debt of record, but because the right 
 to issue execution is not ascertained and fixed until the order for estreat 
 is made, it has no lien. The principle of that decision applies to the 
 *isni qi^Gstion before us. The right *to issue execution to satisfy the 
 -' judgment, in both cases is what creates the lien. 
 
 According to the Statute of Frauds and Perjuries, 26 Car. 2, chap. 
 3; sect. 13, 14, 15, P. L. 83, the clerk who signs a judgment at law, is
 
 *180] CHARLESTON, APRIL, 1833. 125 
 
 required to note the day of the month and year, on which he si^-ns it 
 both on his judgment docket, and also on the margin of the judgment • and 
 as against purchasers bona fide for valuable consideration, they take date 
 and have a lien, only from the day on which they are so signed. The set- 
 tled practice and construction of these sections, in this State, has been to 
 regard the lien of the judgment, not only as against purchasers, but as 
 between creditors, as commencing from the day on which it was signed. 
 Whether this construction is correct or incorrect, it is not now necessarv 
 to inquire. The provision in relation to purchasers, is sufficient for my 
 present purpose. If the lien of a decree is to commence from the day on 
 which a cause is heard, it may affect the rights of bona fide intermediate 
 purchasers — for it sometimes happens, unavoidably, from the intrinsic diffi- 
 culties involved in a cause, that a decree is postponed for months after 
 the hearing. Is the estate of the defendant to be locked up during this 
 time, and to be unalienable both by himself, and by operation of law ? 
 For the effect of the constructive lien of the decree, would be to defeat 
 any sale of his real estate, made after the hearing ; and thus, either to pre- 
 vent a sale, or to perpetrate a fraud on the purchaser. This was the 
 very mischief intended to be guarded against, by the statute of frauds 
 and perjuries, at law ; and are we, in its teeth, in establishing a rule con- 
 fessedly within our power, in opposition, to the declared will of the peo- 
 ple, through their representatives, to say, that a decree in equity shall 
 have a constructive lien, which has been wisely denied to a judgment at 
 law ? I think not. The objections to this constructive lien are not yet 
 exhausted. Others present insuperable difficulties to its allowance. Its 
 effect might be, to postpone a judgment at law obtained before it was pro- 
 nounced, and to defeat a sale under it. If it be true, that it binds from 
 the day on which the case is heard, a judgment* at law, obtained r^iQ-. 
 after the hearing, duly entered up, and signed by the clerk, and L 
 eutitled to be paid perhaps for months, out of the debt or estate, 
 suddenly becomes junior to that which had no existence until long after 
 its own legal existence. This monstrous absurdity arises from allowing 
 construction to stand in place of fact. If under the judgment thus ob- 
 tained, the land of the debtor is sold under the execution, and the money 
 paid over to the plaintiff, the constructive lien of the decree would defeat 
 the sale and deprive the purchaser of his title. So, too, in the cases be- 
 fore us, if Dawson, under his decree, had sold his debtor's estate, and 
 received the proceeds before the decree in Thos. C. Scriven's case, he 
 must, if the doctrine contended for is correct, upon the decree being pro- 
 nounced in the latter case, have refunded to it its proportion. These con- 
 sequences of a constructive lien, must satisfy every one of the impropriety 
 of allowing it. But it is said, it is conceded that the decree could not 
 have a constructive lien, as against purchasers, it is only between creditoi-s 
 that it ought to have this effect. There can be no such distinction made. 
 The decree must, for all purposes, take effect from the day on which the 
 cause was heard ; or from the day on which it is pronounced. From the 
 time it is legally to be regarded as a decree, it has its lien, and there is 
 nothing in the law which will enable us to postpone it as to one class, and 
 give it effect as to another. 
 
 In equity, there is not as at law, a technical term within whicli the 
 Judge is alone authorized to pronounce judgment. The term in Equity
 
 126 SOUTH CAROLINA EQUITY REPORTS. [*18l 
 
 is for the hearing of causes, and the Court is considered as always open. 
 Hence it is, that the Chancellor may in vacation, as well as during his 
 sittings, pronounce his decrees. He is regarded as in Court, to pro- 
 nounce judgment, on the day on which his decree is delivered to the Com- 
 missioner, and filed by him ; and from that time it is a decree, and its 
 lien commences. This rule may operate hardly in this and similar cases, 
 but these partial evils will not bear a comparison w'ith those which would 
 .result from giving decrees a lien from the day on which the causes were 
 ^loo-i heard. The prevention of such consequences as *result from the 
 -■ application of the rule, to the cases under consideration, will in 
 future be in the power of the Chancellors. Cases against the same party 
 at the same Court, in which decrees for the payment of money are ex- 
 pected to be made, can very properly be held under advisement together, 
 until judgment at the same time, can be pronounced on them. It is 
 ordered and decreed, that the Circuit decree be affirmed. 
 
 Johnson and Earle, Js., concurred. 
 
 H. MucKENFUss, V. JoHN Desil Heath, and another. 
 
 A trustee under a deed, who has the management of the estate of a minor, is enti- 
 tled to commissions under the Act of 1745. although he has failed to make 
 returns to the office of the Secretary of State. [*183] 
 
 The plaintiff, as a trustee under a deed, held certain real and personal 
 estate for the use of the defendant Heath, during his minority On his 
 attaining full age, and demanding an account and transfer of the estate, 
 this bill was filed to obtain the order and sanction of the Court, to 
 authorize such transfer to the cestui que trust. The only question in 
 the case, was as to the allowance of commissions to the plaintiff. From 
 the report of the Master, it appeared that he had kept a regular account 
 of his transactions, and that the funds had been promptly and faithfully 
 invested. The plaintiff claimed as a compensation for his services, (under 
 the act of 1145, 1 Brev. Dig 392,) five per cent., on his receipts and pay- 
 ments ; and ten per cent, on the dividends of the stock invested. The 
 claim was resisted on the ground that regular returns had not been made 
 to the office of Secretary of State. 
 
 Chancellor De Saussure held, that a trustee cannot demand compen- 
 sation for his services, unless by positive agreement, or under some sta- 
 tutory provision — that the act of 1745 allows commissions, on condition 
 that the trustee makes returns to the Secretary of State's office, and the 
 *1831 P^'^^^^^i^ "0^ *having complied with the condition, was not entitled 
 -^ to commissions. 
 
 From this decree the plaintiff appealed. 
 
 Fepoon, for the appellants, referred to A. A. 1T45, P L. 201 ; 1 Brev, 
 Dig. 392 ; P. L. 495 ; 6 Dane, 602 ; 6 Bacon, Ab. Tit. Stat. K. 392 ; 
 2 John. 379 ; 4 Mas. T. R. 318. 
 
 De Saussure, contra, cited 1 Ball & Beatty, 185 ; 1 John. Ch. 27, 38 ; 
 lb. 527.
 
 *183] 
 
 CHARLESTON, APRIL, 1833. ] 27 
 
 Harper, J. The Act of Assembly of 1745, speaks of all guardians 
 and trustees who shall have the care, management, or custody of the 
 estates, real or personal, of any infants or minors ; and by the eleventh 
 clause, it is enacted, "that all and every executor, administrator, guardian 
 or trustee " shall receive commissions. The trustee in the present case 
 seems to come under the very letter of the act. He has had the custody 
 and management of the estate of minors. It has been supposed that the 
 allowing of commissions would be inconsistent with the determination of 
 this Court in the case of Ravenel, administrator of Cripps, v. the As- 
 signees of Charles Pinckney. In that case it is said, " that the act of 
 1745, allowing commissions to executors, administrators, guardians, trus- 
 tees, &c., embraces only that species of agents or trustees therein specifi- 
 cally mentioned, or such as are under the authority of the law, and the 
 control of the Courts. Factors, commission merchants, commercial 
 agents, and assignees, are entitled to commissions, from the usage of 
 trade. But the private agent or assignee of an individual, is not entitled 
 to any such claim, unless he makes it part of his contract." We are of 
 opinion, that in this case the trustee is such an one, as is specifically 
 mentioned in the statute. There is an obvious distinction between the 
 agent or assignee of individuals of full age, and capable of contracting 
 for a proper compensation for the particular services he requires to be 
 rendered, and the trustee of an infant, whose services may be required for 
 a number of years. It is true, that the donor who settles property on an 
 infant, might, if he thought *proper, provide for a compensation r:^ici 
 to the trustee. But still the trustee's services are rendered not to L 
 him, but to the infant, and he being incapable of contracting, the law 
 fixes the compensation. The law favors provisions for infants ; and trus- 
 tees in such cases, are to be encouraged to accept and act. But, what- 
 ever the reason for the distinction may be, the law seems plainly to have 
 made it. 
 
 We think the Chancellor mistaken in supposing that the making of 
 regular returns to the Secretary of State's office is, by the law, made a 
 condition on which the trustee's title to commissions will depend. By 
 the executor's law, it is expressly provided, that executors or adminis- 
 trators, who fail to make returns, shall forfeit their commissions. But 
 there is no such provision in the Act we are considering. This Act pro- 
 vides that executors or administrators, who fail to return an inventory 
 and appraisement, shall be liable for all the debts and legacies of the tes- 
 tator or intestate ; but no penalty or disability is imposed on a guardian 
 or trustee, who shall fail to return his accounts. A default in this 
 respect, may subject him to the censure of the Court. Peiliaps, if it 
 appeared that the estate had suffered injury from his neglect, it might be 
 within the competency of the Court to deprive him of commissions, as a 
 punishment. But in the present case, it appears that the estate has been 
 managed skilfully and faithfully : and satisfactory accounts regularly kept, 
 though not returned. 
 
 The motion to reverse the decree on this point, is therefore granted. 
 
 O'Neall, J., concurred.
 
 128 SOUTH CAROLINA EQUITY REPORTS. [*1S5 
 
 *185] *Skilling vs. Jackson, Administrator. 
 
 Under the Act of 1*191, when the amount claimed does not exceed 
 £100, the proceeding may be bj petition instead of bill, whether the 
 cause be litij^ated or not. 
 
 The Administratrix of Peter D. Foote, deceased, vs C. W. Yan 
 Ranst, Administrator of Asa and John Foote, deceased. 
 
 Where a party has neglected to file exceptions to the Master's report, within the time 
 prescribed by the rule of Court, he will not afterwards be permitted to file them, 
 unless he shows by affidavit, that he was prevented from filing them by accident, 
 mistake or surprise [*185] 
 
 O'Neall, J. The defendant neglected to file exceptions to the Mas- 
 ter's report, within the twenty-sixth rule of Court ; at the succeeding 
 Court he moved the Chancellor for leave to file exceptions, but made no 
 affidavit, setting out the causes why they had not been filed : the Chan- 
 cellor refused the motion and confirmed the report. This is an appeal 
 from his decree, on a great variety of grounds, arising out of the manner 
 in which the Master has stated and made up the accounts. But in the 
 view which we have taken of the case, it will only be necessary to con- 
 sider that which questions the correctness of the Chancellor's decision, on 
 the motion for leave to file exceptions. For if the Chancellor's decision 
 was correct in that respect, it is useless to talk about errors in the Mas- 
 ter's report on the accounts. They can only be brought regularly to the 
 view of the Court by exceptions. Were we now to notice them, when 
 they were not presented as exceptions regularly filed to the Master's 
 report before the Chancellor, we should, in effect, abolish the settled 
 practice of the Court. It is better, therefore, that injustice should even 
 be done, than that we should unsettle a practice as old as the Court of 
 Equity itself. I have no doubt that on a proper case being made, the 
 *1861 C!hancellor had the power, and would have ^permitted the excep- 
 -" tions to have been filed. But to have entitled the defendant to 
 this indulgence, it was necessary that he should have shown by affidavit, 
 that he was prevented from filing the exceptions, by accident, mistake, or 
 surprise. The case of Bowker v. Nickson, 3 31 ad. Ch. Rep. 226, is an 
 authority to this point. The Yice Chancellor, Sir John Leach, says — 
 " It is necessary objections should be taken to the draft of the report, 
 before the party can except, in order that the Master may have an oppor- 
 tunity of reconsidering his opinion, and it is not form, but substance ; 
 but if, by accident or surprise, that has not been done, the Court will give 
 the party leave to except. It is sworn by the attorney, that the clerk in 
 Court did not send to him the warrant which had been served fixing a 
 day for setting the draft of the report. If that be so, it would not be 
 just to exclude the party from objecting to the report, because the clerk 
 in Court was negligent. Let the clerk in Court make an affidavit that he
 
 *186] CHARLESTON, APRIL, 1833. 129 
 
 did not send the warrant to the attorney, or give him any communication 
 of it. If such affidavit is produced, the plaintiff may take his motion, 
 paying the costs of it, but if no such affidavit is produced, the motion 
 must be dismissed with costs. 
 
 The practice in this State requires notice to be given of the report to 
 the parties ; and in Charleston, the party dissatisfied is allowed ten days 
 after notice, to file his exceptions. XJpon these being put in, the Master 
 may, and ought to report upon them, sustaining or overruling them. If 
 objections to the draft of the report are matters of substance and not of 
 form, the exceptions are also, for the very same reason, matter of sub- 
 stance and not of form. They ought to be filed with the Master, within 
 the time limited by the rule of the Court, in order to give him the oppor- 
 tunity of recording his opinion, before the Court is called on to pass upon 
 it. If they are not filed within the rule, the party in default can only be 
 relieved from the consequences of his neglect by showing on oath that he 
 was prevented from filing them, by accident, mistake, or surprise. 
 
 The defendant's solicitor had ample notice of the report, and abundant 
 time afforded to him, to put in his exceptions* — none were filed, r:)i:-,n^ 
 and at Court, he moved for leave to file his exceptions without ^ 
 stating a case which made out either accident, mistake or surprise. The 
 plaintiff's counsel insisted on his legal advantage, and I think the Chan- 
 cellor was right in refusing the motion and confirming the report. 
 
 It is therefore ordered and decreed that the Chancellor's decree be 
 affirmed. 
 
 Johnson and Eakle, Js., concurred. 
 
 Hunt, for the defendant. 
 
 John White and B. F. Hunt, Assignees of Thomas W. Price, vs. 
 Charles Follin and Caroline C, his wife, Admr. and Admx. of 
 John Trescott, deceased. 
 
 Where an insolvent debtor rendered in a schedule of his estate, in -which was in- 
 cluded a bond on the defendant's intestate, and was discharged according to law, 
 but inadvertently omitted to execute an assignment of the schedule. — I/ekl, that 
 under such circumstances, this was a good equitable assignment of the bond, 
 ■which a Court of Equity would set up and decree on ; but that the insolvent or 
 (in case of his death) his legal representative, should be made a party to the bill. 
 [*187 
 
 O'Neall, J. It appears that Thomas W. Price was arrested by the 
 sheriff of Charleston under a ca. sa., at the suit of Philip Moore and 
 others ; that he filed his petition for the benefit of the Insolvent Debtor's 
 Act, with a schedule of his whole estate and effects, in which was inclu- 
 ded the bond on the defendant's intestate. That he was ordered to be 
 discharged, on executing the usual assignment, and that B. H. Hunt, 
 John White, and Dr. Burgoyne were appointed the assignees ; the lat- 
 ter declined to act. Price did not execute the assignment, from some 
 mistake or omission of the clerk, but was discharged. He is dead and 
 insolvent. The bill is against the defendants, as administrator and ad- 
 YoL. I.— 9
 
 130 SOUTH CAROLINA EQUITY REPORTS. [*187 
 
 ministratrix of the intestate, Trescott, for the payment of his bond, which 
 the plaintiffs have in their possession. The defendants demurred to the 
 bill, and amongst other causes, they insist, that the administrator or other 
 legal representative of Thomas W. Price, should be a party. The Chan- 
 *18S1 cellor [Johnston] sustained the demurrer qn this *ground, and 
 
 -^ the question now is, whether such a party is necessary. 
 The case stated in the bill, makes out an equitable assignment of the 
 cKose in action, now the subject of controversy. The second section of 
 the Insolvent Debtor's Act, after directing the manner in which the Court 
 shall order the assignment, to be made "by a short indorsement on the 
 back of his or her petition, signed by the petitioner," &c., provides, "and 
 by such assignment, the estate interest and property, of the lands, goods, 
 and effects so assigned, shall be vested in the persons to whom such 
 assignment is made, who may take possession of, or sue for the same, in 
 his or their own name or names, in like manner as assignees in commis- 
 sions of bankruptcies, can or lawfully may do, by the laws or statutes of 
 Great Britain." P. L. 248. 
 
 To have passed a legal right to the bond to the plaintiffs, and to have 
 enabled them to sue on it at law in their own names, it was necessary that 
 the assignment should have been executed according to the act. This 
 constitutes their only legal title, and not being able to make it out, there 
 is, of course, no assignment of the bond at law. But, in equity, the facts, 
 that the formal execution of the assignment was omitted by mistake, that 
 the insolvent was ordered to be discharged on the condition that he 
 should make it, that he has the full benefit of the order, and that he 
 delivered the bond to the assignees appointed by the Court, constitute a 
 good equitable assignment. But can the equitable assignment be set up 
 and decreed upon, until the assignor, or his representative, if he be dead, 
 is a party ? I am satisfied it cannot. It may be admitted, as the law cer- 
 tainly is, that neither at law nor in equity, would a payment or release by 
 the obligee of the bond, be good as against the equitable assignment, 
 after notice of the assignment to the obligor : Leigh v. Leigh, 1 Bos.. & 
 Pul. 447, Baldwin v. Billingstry, 2 Vern. 539 : so, too, the bond would 
 not, after such an assignment, pass under a commission of bankruptcy, 
 Winch V. Kesley, 6 T. K. 619. But still these positions do not conclude 
 the question. They only show, that the equitable rights of the assignee, 
 *1SQ1 ^^'^' ^^ preserved *both at law and in equity, against the fraud and 
 
 -I combination of the obligor and obligee. At law, the bond must 
 have been sued in the name of the obligee or his legal representative, the 
 legal interest being in him ; and yet, there he is regarded as suing for the 
 benefit of the assignee, and a payment to, or release by him, after notice, 
 would be adjudged void. In equity the assignor must be a party, as was 
 ruled in the case of Cathcart v. Lewis, 1 Ves. jr. 463. That was a bill 
 by the assignee of a judgment; the Lord Chancellor held, that the 
 assignor was a necessary party. The reason of the rule appeal's to be, 
 that no decree can be given upon the equitable title, until the legal one 
 is before the Court. The proof to establish the assignment cannot be 
 heard, until he, who is thereby to be deprived of the legal interest, is 
 legally a party. For, however improbable it may be, yet we must re- 
 gard it as possible, that he may show cause why he should not be divested 
 of it.
 
 *1S9] CHARLESTOiN-, APRIL, 1833. 131 
 
 In this case it might be said, how is it known that Price has not paid 
 the debts, and if this be so, he or his representative would be entitled to 
 receive payment of the bond, instead of the assignees. This is, it is 
 true, a mere possibility which I am sure will not turn out to be true in 
 this case, but this case is to constitute a precedent for future cases, in 
 which, instead of being conjecture, it may be fact, and hence here, as in 
 the case which may occur, the assignor or his representative, must be a 
 party. I admit the rule, that when the legal estate or interest is repre- 
 sented by one or more parties befoi'e the Court, that it is not in all cases 
 necessary that every one having an interest shall be a party. As in the 
 case of the executors of Brashers v. Van Courtland, 2 J. C. R. 247, 
 where the committee of a lunatic were made parties, it dispensed with 
 the necessity of making the lunatic a party ; for they were, in equity, his 
 proper representatives, and alone entitled to be heard in defence of his 
 rights. So in the case of Cockburn v. Thomson, 16 Ves. 321, where a 
 bill was filed by several persons on the behalf of themselves and all 
 others, proprietors of the Philanthropic Association, it was held that the 
 non-joinder of some of the proprietors would not prevent the Court from 
 giving relief to the *parties before it. In that case all had an inter- r:)ci qn 
 est in the dispute, yet any one was the representative of the entire ^ 
 legal interest. But I am not aware of any case in which the Court of 
 Equity has given relief upon the equitable title or interest, where the 
 party in whom the legal title or interest was, was not a party. 
 
 It is ordered and decreed, that the Chancellor's decree sustaining the 
 demurrer, be affirmed, and that the complainants have leave to amend 
 their bill, by making the administrator or executor of Thomas W. Price, 
 deceased, a party, complainant or defendant, as they may think proper — 
 the costs of the demurrer and amendment to abide the event of the 
 cause. 
 
 Johnson, J., concurred. 
 
 Harper, J., absent. 
 
 H. A. De Saiissure and Pettigru, for the plaintiffs. 
 
 Mary I'On Kinloch, and her infant children v. Jacob Bond I'On, and 
 the devisees of Cleland Kinloch, deceased. 
 
 Where a husband in pursuance of a marriage contract, purchased lands and had the 
 titles made to the trustees under the settlement, but the deeds were absolute, 
 not declaring any trusts, and the husband afterwards sold the lands, and the 
 trustees at his request, conveyed to his purchasers, and he received and squan- 
 dered the proceeds : it was held, that the trustees were liable, although they did 
 no other act showing their acceptance of the trust. [* 191] 
 
 This case came before this Court on appeal from the decree of 
 Chancellor Johnston, at Charleston, making the defendants liable for a 
 trust fund which had been wasted. The facts of the case and the 
 questions made, are so fully set forth in the following opinion, as to render 
 any other report unnecessary.
 
 132 SOUTH CAROLINA EQUITY REPORTS. [*190 
 
 Grimkie and Toomer, for the defendants, cited and relied on Kipps v. 
 Dennison, 4 John. Kep. 23, 24, 26 ; 3 Atk. 480 ; 4 Yes. 628 ; 2 Mad. 
 121 ; B. P. C. 293; 2 Bro. C. C. 114 j t Yes. 186. 
 
 H. A. De Saussure and Pettigru, contra, cited and commented on, 1 
 
 ^,Q-,-| Bacon Ab. tit. Uses and Trusts, B. 1 Saunders on *Uses and 
 
 ^"^^-1 Trusts, 246-7,253; 1 Mad. 256; Com Dig. 1010-11; Whistler i\ 
 
 :N'ewmand, 4 Yes. ; 2 Cox's Cases, 1 ; 4 John. Ch Rep. 234 ; 11 
 
 Yes. 319; 3 Yes. jr. 696 ; 11 Yes. 319; 3 Bro. C. Rep. 90 ; 9 Yes. 
 103 ; 1 Atk. 59 ; 3 lb. 323 ; 10 Yes. 511. 
 
 Johnson, J. In this case, as in most others of the same character, 
 various minuiice are mixed up with the important facts, which serve 
 rather to embarrass than elucidate : divested of these, this cause lies in a 
 very narrow compass. In contemplation of a marriage between the com- 
 plainant, Mrs. Kinloch, and her husband, Frederick Kinloch, a marriage 
 contract was entered into, to which the intended husband and Thomas 
 Lowndes, the father of Mrs. Kinloch, and the defendant, Jacob Bond 
 I'On, and Cleland Kinloch, as trustees, were parties. By this contract, 
 Thomas Lowndes covenants to advance £3,000 to Frederick Kinloch, 
 the intended husband, to be invested by him in property and conveyed to 
 the trustees, for the uses and trusts declared in the contract (for Frederick 
 Kinloch and wife, for life, and then to the issue of the marriage). 
 Thomas Lownes paid the £3,000 to Frederick Kinloch, and he invested 
 a part thereof, (according to the statement in the bill, about $11,100, and, 
 according to his answer, $7,265) in lauds, and procured the title deeds to 
 be executed by the persons of whom he purchased, directly to the 
 trustees, Jacob Bond I'On and Cleland Kinloch. These deeds do not 
 set out the object, or declare the trusts, but are general. Frederick Kin- 
 loch afterwards sold these lands, and procured the trustees to join in a 
 deed to the purchaser, and he received and squandered the proceeds, and 
 is now insolvent ; and the object of the bill is to compel an account from 
 the trustees of this fund, and that they may reimburse the trust estate, the 
 sum laid out in the purchase of lands. 
 
 One ground of defence common to all the defendants, is, that the trus- 
 tees had not done any act, making themselves liable, because the property 
 never had been conveyed to them, as trustees under the settlement. An 
 agreement had been entered into between Thomas Lowndes, Frederick 
 *1921 •^^"^*^'^'^' '^"^ ^^i^ *father, Francis Kinloch, in which, among other 
 "'-' things, Thomas Lowndes undertakes, in consideration that Francis 
 Kinloch would make a bond to Col. I'On, for $15,000 as trustee to the 
 use of Frederick Kinloch and wife, to indemnify him (Francis Kinloch) 
 against his guaranty under the marriage settlement ; and it is insisted, 
 that the liability of the trustees to account is discharged by this contract. 
 Jacob Bond I'On lived at a distance, and had no agency in the invest- 
 ment of the fund, nor did he, in any manner, interest himself concerning 
 the trusts, except to join in tlie conveyance of the land in pursuance of 
 the sale made by Frederick Kinloch, and on that account it is insisted in 
 his behalf, that he is not liable. The trust reposed in Frederick Kin- 
 loch by the deed of settlement, was that he should invest his wife's portion 
 in property, and procure the same to be vested in the trustees, to the use
 
 *192] CHARLESTON, APRIL, 1833. 13,^ 
 
 of the settlement : this was so far fulfilled, that the lands purchased were 
 vested in the trustees, but the conveyances are defective in not setting out 
 and declaring the uses. Courts of Equity, it is said, have from a very 
 early period, taken upon them the power to supply the defective execu- 
 tion of powers, as a cherished branch of equity jurisdiction, 1 Mad. 
 Ch. 58-4. It is said, too, that it is a rule in equity that if one comes 
 into possession of trust property with notice of the trust, he shall be con- 
 sidered as a trustee, and with respect to that property, bound to the exe- 
 cution of the trust, 2 Mad. Ch. 125. 
 
 Now, it is not pretended that either of the trustees were ignorant of 
 the true object of the conveyances to them ; indeed all the circumstances 
 conspire to show that they could not be, and the legal estate was in 
 them. The Court of Equity would therefore have either supplied the 
 execution of the trust confided to Frederick Kinloch, or enforced a 
 declaration of the uses in conformity to the trusts. By the conveyance 
 to the purchaser from Frederick Kinloch, the trustees have parted with 
 their dominion over the property, and by suffering Frederick Kinloch to 
 dissipate the proceeds, so much has been lost to the trust estate, and upon 
 every principle of equity, they are responsible. I cannot perceive how 
 the contract between Thomas Lowndes, Francis Kinloch *and r:jciqq 
 Frederick Kinloch, can in any way influence the determination of L 
 the Court. In the first place, it is not apparent that it had for its object 
 the indemnity of the trustees against this liability ; but supposing it had, 
 that would not discharge them, for Thomas Lowndes had no authority to 
 release them — he was not himself beneficially interested in the trust 
 estates. By joining in a conveyance of the land, Jacob Bond I'On con- 
 tributed to put the fund in the power of Frederick Kinloch, who has 
 wasted it : and on that ground he is liable. His not having otherwise 
 intermeddled with the estate, so far from being a merit, is a violation of 
 the trust ; having accepted it, he incurred the responsibility of discharg- 
 ing the duties which it imposed. 
 
 Motion dismissed. 
 O'Neall and Harper, Js., concurred. 
 
 Morton A. Waring, Executor of Thomas Smith, Jr., u Anne Pur- 
 cell, Executrix of Thomas Smith, Jr. 
 
 The testator, by his will, directed his debts to be paid out of the debts due him, and 
 gsive certain specific legacies, and then devised the residue of his estate to his 
 sister for life, remainder over, &c., and died in September, leaving a crop on his 
 plantation : Held, that the crop growing on the land, and which was severed 
 before the last of December, was assets in the hands of the executor, for the pay- 
 ment of the debts and pecuniary legacies. [*196] 
 
 Where the testator bequeathed an annuity to be paid on the first of March in every 
 year, and he died in September : it was held, that the legatee, on the first of 
 March after the testator's death, should be paid a proportion of the annuity, 
 equal to the time which had run after his death. [*199] 
 
 The defendant, an executrix, with the consent and approbation of the plaintiff, her 
 co-executor, delivered a bond due to the testator to a legatee, under the belief 
 that the testator so intended ; afterwards the plaintiff discovered circumstances 
 ■which induced him to believe that they had mistaken the testator's wishes, and 
 filed a bill for settlement and relief: Held, that the plaintiff, having given his 
 consent to the delivery of the bond, was concluded by it.[*202]
 
 134 SOUTH CAROLINA EQUITY REPORTS. [*193 
 
 This case came to a hearing: before Chancellor De Saussiire, at 
 Charleston, April Term, 1831. The following extract from his decree 
 presents the facts and the questions arising out of them : 
 
 " The late Thomas Smith, Jr., made and duly executed his last will 
 and testament on the 11th October, 1821, and departed this life on the 
 day of September, 1830, leaving the same in full force and virtue. 
 
 " First. — By that will the testator desired that his sister, Mrs. Ann 
 Purcell, should enjoy the profits of his estate as free from incumbrance as 
 possible. 
 
 " Second. — He directed his debts to be paid from such moneys as 
 j^-Q .-i *might be due to him at the time of his death, in preference to any 
 -I part of his estate, or the income thereof. 
 
 " Third. — He bequeathed to his aunt, Sarah Hutchinson, a female 
 slave, a riding chair and horse, and five hundred dollars annually, to be 
 paid out of the income of the estate on the first of March annually during 
 her life. 
 
 " Fourth. — He bequeathed to his cousin, Thomas Smith Waring, two 
 slaves whom he names. 
 
 "Fifth. — He devised and bequeathed all the rest and residue of his 
 estate, real and personal, to his sister Ann Purcell, for and during her 
 natural life, and after her death to his cousin Morton A. Waring, his 
 heirs, &c. — subject to the payment of a legacy of two thousand dollars 
 to his cousin, Horatio Smith Waring, within twelve months after the de- 
 cease of Mrs. Ann Purcell. 
 
 "Sixth. — He nominated Ann Purcell, Morton A. Waring and Ho- 
 ratio Smith Waring, to be executors of his will. The two former proved 
 the will and qualified thereon as executors. 
 
 " The cause was argued, and several questions were submitted to the 
 consideration of the Court. 
 
 " First. — As to the crop growing on the estate of the testator at the 
 time of his death, in 1830. 
 
 " Second. — As to the fund for the payment of the debts. 
 
 " Third. — As to the payment of the annuity of five hundred dollars, to 
 Mrs. Ann Hutchinson. ****** 
 
 " On the first question there is some difficulty. The general law under 
 our statute of 1789, (sec. 23,) appears to be clear, that the crop of the 
 year in w^hich the testator or intestate dies, shall be assets subject to 
 debts, legacies, and distribution. And I think it is applicable to all 
 cases, notwithstanding the ingenious distinction of the counsel, founded 
 on the wording of the statute, between the tenant for life or holding abso- 
 lutel}'^, going out of possession or coming into possession. In any ques- 
 tion between creditors and legatees or distributees, the general law must 
 prevail, but in the case of an ample estate, where the question arises be- 
 tween different devisees and legatees, the general, may give way to the 
 particular, provisions of the will. In the case before us, the testa- 
 *1 QM ^^^'* i^^i^'f^sts the most decided desire to favor his sister. It is 
 -J the first clause of his will, that she should enjoy the profits of his 
 estate as free from incumbrance as possible, and after some particular dis- 
 positions, he devises the whole of his real and personal estate to her 
 during her life. He also provides a special fund for the payment of his 
 debts ; for he directs that his debts should be paid from such moneys as
 
 *195] 
 
 CHARLESTON, APRIL, 1833. 135 
 
 may be due to him at the time of his death, in preference to any otlier 
 part of his estate or the income thereof. The crop of the year in which 
 he died was the principal part of tlie income of his estate ; and by the 
 family law of his will, it is not to be applied to pay the debts — and as 
 between his legatees, it is to be obeyed whilst other funds are to be 
 found. 
 
 " The second question is, what is the proper fund to pay the debts. 
 The testator says they are to be paid out of the debts due to him. It 
 appears that these do not amount to more than $2000, whilst the debts 
 due by him amount to $4000. The deficiency must l)e supplied in some 
 way out of the estate, with great attention to the testator's desire that 
 the income should not be diminished to the prejudice of the sister of the 
 testator ; and to the interest of the remainder-man, that the estate itself 
 may not be broken down and exhausted. The Court is not sufficiently 
 in possession of the facts relative to the situation of the estate, its pro- 
 ductive funds, its unproductive stock, &c., &c It is therefore ordered, 
 that it be referred to the Master in Equity, to examine and report the 
 situation of the estate; its productive and unproductive funds, and the 
 proper part of the estate to be applied to aid in the payment of the 
 debts of the testator. 
 
 " The third question relates to the payment of the annuity of $500 to 
 Mrs. Ann Hutchinson. She was the kinswoman of the testator, and this 
 provision of his bounty was intended for her subsistence. It appears to 
 me, as the testator has himself fixed the first day of March as the day for 
 the annual payment, that we should come nearest his intention by direct- 
 ing such proportion of the annuity as accrued between the testator's death 
 in 1830, and the first of March, 1831, to be then paid, and afterwards each 
 succeeding annuity to be paid on *each succeeding first of March — r-^. „„ 
 and it is so ordered and decreed. Another question is, out of L 
 what fund is it to be paid. The will answers that question, by providing 
 expressly that the annuity should be paid out of the income of the estate, 
 and it is subsequent to this direction, that the residue and rest of the 
 estate is bequeathed to the testator's sister for life." 
 
 From this decree the plaintiff appealed, on the grounds : 
 
 1. That the crop on the land at the testator's death, should be applied 
 to the payment of the debts. 
 
 2. That Mrs. Hutchinson's annuity ought to have been paid in full, on 
 the first of March after the testator's death. 
 
 7. E. Holmes, for the appellant, cited Toller Ex'rs. 149 ; A. A. 1789; 
 P. L. 494. 
 
 Pettigru, contra, referred to Toller, 129, 202 ; Gilb. Ev. • 6 E. 
 
 604 ; 2 Black. 122. 
 
 Johnson, J. The testator, Thomas Smith, is represented to have 
 died in September, 1830, and the first ground of this motion arises out 
 of the following clause of his will, which is preceded by divers specific 
 bequests, to wit : — " I also give, devise and bequeath all the rest, residue 
 and remainder of my estate, real and personal, of what nature and kind 
 soever the same may be, to my sister Ann Purcell, for and during the 
 terra of her natural life ; and from and immediately after her death,
 
 136 SOUTH CAROLINA EQUITY REPORTS. [*196 
 
 over," &c. At the time of his death, the testator owned and possessed 
 a plantation and negroes, which passed under this clause of the will, 
 but being indebted, the question is, whether the crop growing on the 
 plantation at the death of the testator, is assets in the hands of the 
 executor, or passed to the defendant under the devise. 
 
 It is enacted by the Act of 1189, Pub. Laws, 494, that " if any person 
 shall die after the first day of March in any year, the slaves of which he 
 or she was possessed, whether held for life or absolutely, and who were 
 employed in making a crop, shall be continued on the lands which were 
 5j..„^-, in the occupation of the deceased, until the crop is *finished, and 
 -^ then be delivered to those who have the right in them ; and such 
 crop shall be assets in the executor or administrator's hands, for the pay- 
 ment of debts, legacies and distribution," the current expenses being paid 
 out of it. The same clause of the act further provides, that "emblements 
 growing on the land, and which shall be severed before the last day of 
 December, shall likewise be assets in the hands of the executor or admin- 
 istrator ; but that such as may be growing on the land at that day, or at 
 the death of the testator, if that happen between the said last day of 
 December, and the first day of March, shall pass with the lands;" and if 
 any person. shall rent or hire lands or slaves of a tenant for life, and such 
 tenant for life dies, the person having such land and slaves, shall not be 
 dispossessed, until the crop of that year is finished, he or she securing the 
 payment of the rent or hire when due. 
 
 According to the common law, the annual productions of the soil 
 growing at the death of the testator, went to the executor and not to 
 the heir ; and thus far our Act is in affirmance of the common law ; but 
 this rule did not sufficiently provide for the state of things existing here. 
 In England, the executor had the same means of providing for the culti- 
 vation of the crop that the testator had, by hired laborers, over whom 
 the testator had not the power of disposition. Here it is, for the most 
 part, done by means of slaves belonging to the testator, which he may 
 dispose of by will, and in case of intestacy, are distributable in the same 
 manner as lands or chattels. If they were removed from the land after 
 the crop was planted, and before it was finished, it would, in general, and 
 especially on large plantations, be impossible to supply their places, and 
 the crop would be lost. In cases of intestacy, without this Act there 
 could be nothing to restrain the administrator from making imme- 
 diate distribution of the personal estate to the destruction of the crop, 
 and thus a fund might be lost to the distributees or creditors. The 
 object of the legislature obviously was to guard against these coase- 
 quences, by making it the duty of the executor or administrator to 
 retain the slaves and lands until the crop was finished ; the estate 
 *10ST *"^ ^''^ '^"'^ ^^^ negroes vests, as at common law, in the devisee 
 -' or distributee, and the possession only is postponed by this Act. 
 Regarding the provisions of this Act as merely arbitrary, it operates in 
 cases of intestacy with perfect equality and for the benefit of all con- 
 cerned ; by this means the growing crop is preserved, and is so much 
 added to the general fund. The supposed injustice of applying it to a 
 case of testacy disappears, when it is recollected that the testator may 
 order it otherwise if he will. His power of disposition is unlimited, and 
 the Act can only operate when he is silent, and doubtless many incon-
 
 *198] CHARLESTON, APRIL, 1833. 137 
 
 veniences are remedied by it. The rule which it prescribes appears to 
 me to be wise and salutary. 
 
 If the land had been devised to one, the slaves to another, and the 
 beasts of the plough to a third, there could have been no doubt that the 
 rule prescribed by the act should prevail ; and I cannot perceive how 
 the circumstance that the whole is devised to one, can vary it — the Act 
 contains no such exception. The inference, that by the devise of the 
 whole to one, the testator intended that she should also take the crop, 
 would equally apply when it was to several ; there would be the same 
 facility in making distribution of the crop, as of the corpus of the estate. 
 It will be perceived by reference to the last member of the clause of the 
 Act above recited, that when lands or slaves are hired from a tenant for 
 life, he shall retain them until the crop of that year is finished, " but 
 shall secure the payment of the rent or hire, when due ;" and it has been 
 contended, that under this provision, the executor or administrator shall 
 pay rent and hire for lands and slaves retained by him under the first 
 member of this section. But that is utterly inconsistent with the crop's 
 being assets in his hands, for the payment of debts or legacies. Besides 
 that, it is most obvious that it was intended to provide for an entirely 
 different case, the case of lands or slaves hired from a tenant "for life — 
 whilst the other was intended to provide generally for the case of one 
 dying possessed of lands and slaves in his own right, for both of which a 
 perfect and entire system is provided, without the aid of the other. 
 
 *In a preceding clause of this will, the testator directs that his [-,(-iqq 
 debts shall be paid out of "such moneys as may be due to me at L 
 the time of my death, in preference to any part of my estate or the income 
 thereof;" and reliance, I observe, is placed on this, in aid of the intention 
 of the testator, that Ann Purcell should take the growing crop, there 
 being a fund set apart for the payment of debts. If I am right in sup- 
 posing that the crop did not pass under the devise of the lands and 
 negroes, it is wholly immaterial whether the fund set apart for the pay- 
 ment of debts was sufficient or not. If it was not, then the proceeds of 
 the crop would go in aid of it ; if it was, then it would be applicable to 
 the payment of pecuniary legacies, and the remainder, if any, would 
 sink into the residuum. 
 
 On the second ground, we concur with the Chancellor. The bequest 
 to Sarah Hutchinson is of "five hundred dollars' annuity to be paid her 
 out of the income of my estate, on the first day of March in every year." 
 The bequest could not take effect until the death of the testator He 
 died* in September, and the whole annuity would not be due until the 
 September of the following year. But it was to be paid on the first of 
 March in every year ; and we think it comports best with the intention 
 of the testator, that she should be paid on the first day of March next 
 after his death, a proportion of the annuity equal to the time which had 
 run after his death. 
 
 It is, therefore, ordered and decreed, that the decree of the Circuit 
 Court be reformed according to the principles of this decree. 
 
 O'Neall and Harper, Js., concurred. 
 
 After the first decree, this case was again heard at Charleston in 
 January, 1832, on exceptions to the report of the Commissioner, on the
 
 138 SOUTH CAROLINA EQUITY REPORTS. [*199 
 
 reference previously ordered. The following decree presents the only- 
 question then raised, and the facts connected with it. 
 
 ^c)ar.-\ *De Saussure, Chancellor. A decree was formerly delivered 
 ^ -^ in this case on some of the points in it. It was referred to the Com- 
 missioner to report on certain facts, out of which certain questions might 
 arise. The Commissioner has made a report on which the questions antici- 
 pated have been argued. It appears briefly that the testator, the late Mr. 
 Thomas Smith, by his last will and testament duly executed, bequeathed 
 $2000 to Mr. Horace Waring, and some other legacies to others. The 
 rest and residue of his estate was bequeathed to his sister, Mrs. Purcell, 
 during her life, with a remainder to Col. Morton Waring and family. 
 Some very short time before his death,, the testator stated to his sister 
 (as she testifies) that he had thought he had given a legacy of $5000 to 
 Dr. Horace Waring, but on recurring to his will he found he had be- 
 queathed only $2000 ; that he wanted to alter his will and give him 
 $5000. He died suddenly within a few weeks of that conversation. In 
 his coat pocket was found a bond on Mr. W S. Smith, which it was 
 believed he intended to deliver in part of such additional legacy. Mrs. 
 Purcell, under such an impression, communicated her ideas to Col. Morton 
 A. Waring, and proposed to him to deliver the bond to Dr. Horace 
 Waring. To this Col. Waring did not object, and said he would not 
 thwart any of the washes of his testator. The bond was delivered with 
 his knowlege and approbation to Dr. Waring. Col. Morton Waring 
 was also sworn, who testified that the testator, Mr. Thomas Smith, had 
 conversed with him about a legacy to Dr. Horace Waring, to the amount 
 of $4000, but that in looking into the will he found he had given him but 
 $2000, that it was his desire to double it, but was unwilling to alter his 
 will. He stated that he had reason to believe that Horace was in a 
 pecuniary difficulty, and the testator wished the additional provision to 
 be immediately available and proposed a plan for that purpose ; the plan 
 was carried into effect, and the witness, Col. Waring, afterwards heard 
 that stock was transferred to Dr. Horace Waring, to about the amount 
 of $2000. Col. Waring states that he never, before the death of Mr. 
 Smith, had any intimation, from any quarter, that Mr. Smith intended 
 *2011 ^^' ^^™o* ^ bounty or benefit of $5000. From the report and 
 -I the evidence it is obvious that neither of these executors desire to 
 defeat or thw^art the expressed wishes of their testator and benefactor — 
 they would not dishonor themselves by doing so, after his kindness to 
 them. It is not necessary to go into the question, how far the claitn of 
 Dr. Horace Waring to this enlargement of his legacy, could be sustained 
 under the declaration of the testator. Some very strong cases exist on 
 the subject, but they need not be referred to. Dr. Horace Waring is not 
 a party to these pleadings — the bond of Mr. W. S. Smith has been 
 delivered to him by one executor, with the approbation of the other, and 
 that cannot now be distributed. The bill is filed by Col. Waring, as 
 executor, against Mrs. Purcell, as executrix, to have a settlement of the 
 estate, as between themselves and those they represent. Col. Waring 
 insists that the testator meant to give Dr. Horace Waring only $4000, 
 and that the legacy of $2000 actually bequeathed under the will, with 
 nearly $2000 paid from a bond sold for the purpose of enlarging that
 
 *201] CHARLESTON, APRIL, 1833. 139' 
 
 legacy, made up the amount intended for Dr. Horace Waring ; and that 
 the bond of Wm. S. Smith ought to have been retained as assets of the 
 estate, applicable to pay the debts, and for distribution among the 
 legatees. 
 
 To this there seems to be two objections. First, at all events Col. 
 Waring had been present and assenting to the delivery of the bond of 
 Wm. S. Smith to Dr. Horace Waring (who had refused to receive it 
 without his assent). It is not for him to insist that his co-executor 
 should bring into her account of the estate, a bond transferred with his 
 approbation, especially as there are no creditors to be affected. Secondly, 
 that it is sufficiently proved that Mr. Thomas Smith did intend to en- 
 large the legacy of $2000 (by gift or otherwise) to Dr. Waring, to the 
 amount of $5000 The two respectable witnesses, each entitled to per- 
 fect credit from high character, do certainly differ in their statement of 
 the amount intended for Horace Waring. The one states $4000, and 
 the other $5000, as the sum intended by Mr. Smith. Each statement 
 is affirmative, and each entitled to *credit. The testator must have r*202 
 stated the one sum to the one, and the other sum to the other, and L -^ -■ 
 he seems to have acted on the largest sum, for he caused to be delivered 
 to Dr. Waring the proceeds of a bond which he sold, which, with the actual 
 legacy, amounted to nearly $4000, and then was preparing, as Mrs. Pur- 
 cell believes, to deliver up the bond of Wm. S. Smith to Dr. Waring, 
 when he was surprised and prevented by death. It appears to me there 
 should be no feud in this case ; both parties are beneficiaries of Mr. 
 Thomas Smith, both would abhor and repel the imputation of desiring 
 to defeat his wishes — they have expressed that good feeling which must 
 be acted on to its full extent. 
 
 It is therefore decreed, that the bond of Wm. S. Smith was property 
 delivered by Mrs. Purcell, to Dr. H. Waring, with the approbation of 
 Col. M. Waring, and that no account should be taken thereof in the set- 
 tlement of the estate. Costs to be paid out of the estate. 
 
 From this decree the plaintiff appealed, on the ground that his Honor 
 the Chancellor erred, in decreeing that the delivery of the bond to Horace 
 Waring, under the circumstances as stated in the decree, was proper. 
 
 Holmes, for the appellant, cited 2 Eq. Rep. 219. 
 
 Johnson, J, The evidence on both sides establishes that the bond of 
 W. S. Smith was delivered to Dr. Waring by the defendant, with the 
 consent and approbation of the plaintiff, in the belief that they were doing 
 what the testator intended to do, and would, in all probability, have 
 done, if he had not died suddenly. The plaintiff has since discovered cir- 
 cumstances which induce him to believe that they had mistaken the wishes 
 of the testator, and that he had done, in his lifetime, what they supposed 
 he would have had done after his death. Suppose this to be true, that 
 gives him no cause of complaint against the defendant. The act done 
 was his own act, for he consented to and approved it ; and as to her, he 
 is concluded by the maxim, volunti non Jit injuria. 
 
 If there be any liability, it must then devolve on Dr. Waring ; and it 
 is not readily perceived how he can be *reponsib]e. He had no r*203 
 legal right to the bond, and the delivery to him was a voluntary
 
 140 SOUTH CAROLINA EQUITY REPORTS. [*203 
 
 gift from these parties, who as executor and executrix and legatees, had 
 a right to give ; and if a mistake should be alleged as a ground for set- 
 ting it aside, there would be some difficulty in making proof of a mistake, 
 in a voluntary gift. Besides, the defendant still maintains that there 
 was no mistake, and that they did precisely what the testator intended 
 to do ; so that, in point of proof, the odds is against the complainant. 
 
 The motion must therefore he dismissed, 
 O'Neall and Earle, Js., concurred. 
 
 P. W. Frazier and Wife, v. Percival E. Yaxjx, Executor of John 
 
 Pawley. 
 
 The 10£ rule for the hire of negroes, does not apply to a case where there has been 
 an account kept of the proceeds of their labor [*206] 
 
 An executor, in the management of a planting interest, applied the avails of the 
 crops to the purchase of negroes for the estate, and worked them for several years 
 on the plantation, and kept regular accounts of the proceeds of each crop ; the 
 investment being unauthorized, the legatee refused to receive the negroes ; on a 
 bill filed against the executor for an account, he was put on the footing of a part 
 owner and held entitled to a proportionate share of the crops, after making 
 allowance for the rent of the land.[*2U(J] 
 
 The Commissioner, in making up accounts, must conform to the directions of the 
 Court ; and if from any cause, he cannot, he should apply to the Court for fresh 
 instructions. [*208] 
 
 An executor is not entitled to commissions for the years in which he has failed to 
 make returns; and such default deprives him also of the right to recover com- 
 pensation for extra services. [*210] 
 
 John Pawley, of Georgetown, by his will, dated 17th August, 1810, 
 devised all his estate to his infant daughter Mary, and now Mrs Frazier, 
 the plaintiff, and appointed the defendant, Percival E. Yaux, his exe- 
 cutor Mr. Vaux, from time to time, laid out the surplus income of the 
 estate in negroes, for the use of his ward, and in the year 1822, bought 
 of J. P. LaBrace, for her, twenty-five negroes on credit, at $500 per 
 head. These negroes were placed on the young lady's planatation, and 
 very good crops were made for the estate, by their labor, as well as the 
 others. On the marriage of Miss Pawley, a considerable sum was still 
 due on this purchase, which Mr. Frazier refused to pay, and the negroes 
 were taken under the mortgage, and sold. Mr. Frazier became the 
 purchaser, and the proceeds of the sale merely satisfied the residue of the 
 debt The bill filed against Mr. Vaux, for an account, charged this pur- 
 chase as unauthorized, and that the defendant was accountable for 
 * 041 *^^^® sums he had paid out of the estate for that purpose. The de- 
 -^ fendant filed with his answer, a full account of his administration. 
 
 In April, 1828, the case was heard before Chancellor De Saussure, 
 who held that the purchase was authorized, and ordered an account, in 
 taking which he directed a liberal allowance to be made to the de- 
 fendant for the negroes, and that he should be charged with the moneys 
 he had paid on the purchase. The defendant appealed, and the Court
 
 *204] 
 
 CHARLESTON, APRIL, 1833. 141 
 
 of Appeals directed the account to be taken both ways, to enable them 
 to judge whether the purchase had been beneficial to the estate. 
 
 By this report (January 1832), the Comruissioner charged the defend- 
 ant with $8,102, paid towards the purchase, and allowed him for the 
 labor of twelve and a half full hands, at the rate of £10 per hand per 
 annum. To this report the defendant excepted, among other things, 
 "because Mr. Heriot [the Commissioner] has allowed for the use of the 
 negroes that the defendant bought of J. P. LaBrace, only $44 per annum ; 
 whereas it is submitted, that upon principles of justice, as well as on the 
 terms of the decree, the Commissioner should have allowed the defendant 
 a portion of the crops, according to the number of these negroes ; and 
 that the sum of $44, for hire, is inadequate." Tliis exception was sus- 
 tained by his Honor Chancellor De Saussure, who held that " the de- 
 fendant is entitled to credit for whatever was made by the slaves, deduct- 
 ing therefrom a very moderate sum for land rent." 
 
 From this decree the plaintiff appealed ; and in April 1832, the cause 
 came again before the Court of Appeals. The Court, after disposing of 
 the questions raised by the appellant, directed the account to be taken in 
 the following manner : 
 
 " The defendant cannot be regarded as hiring the negi'oes to his 
 cestui que trust — he supposed they were her property, and charged him- 
 self with the whole income derived from the slaves, and the rest of the 
 estate. It has turned out that she and her husband have refused the 
 slaves, and they must, for the purpose of this question, be regarded* t^.^ak 
 as the propery of the executor, employed with the property of the ■- 
 cestui que trust in producing the annual income. How much of it 
 arose from the trust estate, and how much from the property of the 
 executor, are the only questions for decision. The Commissioner will 
 have little difficulty in deciding these questions. Any planter acquainted 
 with the subject can easily say what pro[)ortion of the annual net profits 
 of the years 1822, '3, '4, '5 and '6, ought to be allowed to the defendant, 
 for the services of the twenty-five slaves, by him eini)loyed with the slaves 
 of his cestui que trust in making the crops of those years : It is therefore, 
 ordered and decreed, that the cause be remanded to the Circuit Court, 
 with instructions to the Commissioner to make up the account between 
 the parties, according to the views contained in this opinion." 
 
 Mr. Yaux was summoned to a reference, in January, 1833, which he 
 did not attend ; and Mr. Cohen was present, but having been recently 
 engaged, and being without any instructions, took no part. Mr. Heriot, 
 the Commissioner, by his report, disallows the defendant's commissions 
 amounting to $2,500, on the ground that he had not passed his accounts 
 till after the bill was filed; and allowed him only $50 per head annuall}^ 
 for ten negroes — and annexed two scliedules, one allowing, and the other 
 disallowing, the suras paid by the defendant towards the purchase of the 
 negroes. The defendant objected to the report, because the account had 
 not been taken according to the directions given by the decree. But the 
 Chancellor overruled the objection, considering the allowance to Mr. 
 Yaux, of a portion of the crops, an indulgence which he had forfeited ; and 
 confirmed the report, but without making any further decree. 
 
 From this order, confirming the report, the defendant appealed, and 
 moves to reverse it on the following grounds.
 
 *206] 
 
 142 SOUTH CAROLINA EQUITY REPORTS. [*205 
 
 1. The Commissioner has not followed the directions given by the 
 Court, whereby he is ordered to take the account between Mr. Yaux and 
 his cestui que trust, as between part owners ; nor is there any difficulty 
 in following those directions, as the account filed show what the crops 
 were — and twelve and a-half hands were before allowed as the quota 
 
 *of the defendant, in the crops of 1822, '3, '4, '5 and '6 ; and the 
 number of the other hands would have been shown by complai- 
 nants, into whose possession they all passed, and where they now are. 
 
 2. That the reduction in his last report of Mr. Vaux's hands, from 
 twelve and a-half to ten, is arbitrary and without evidence. 
 
 3. That the defendant, being by the will a trustee, is entitled to com- 
 missions ; but if not, he should be allowed the benefit of an action at law, 
 to recover a compensation for his services, which, according to all the 
 evidence, were faithfully and diligently rendered, and by which the estate 
 was greatly improved during the long minority of the devisee. 
 
 Fettigru and Cohen, for the appellant. 
 
 Hunt, contra. 
 
 O'Neall, J. The opinion of the Court at the last Term fixed the rule 
 by which the Commissioner should have made up his report. The case 
 was then regarded as one in which hire for the slaves, as ascertained by 
 the £10 rule, or by an estimate of what their hire was worth, would not 
 be a proper allowance to the defendant. He was put on the footing of a 
 part owner with his cestui que trust, and held to be entitled to a propor- 
 tionate share of the crops. The opinion then expressed, was not a hasty 
 one — it was formed with great care, a proper sense of what was due to 
 the parties, conformably to the established rules of the Court. The £10 
 rule never was applied to a case in which accounts of the proceeds of the 
 labor of the slaves were kept ; nor can it be applied to cases where there 
 is proof showing that they have been employed but a few years, in which 
 the crops were unifoi'mly good, and the prices not subject to material 
 diminution. If, in neither of these cases, the £10 rule could have an ap- 
 plication, it follows that the opinion of witnesses, of the price for which 
 similar negroes could have been hired, constitutes no guide to ascertain 
 the value of their labor. 
 
 The true question, is, how much did their services yield ? This, in the 
 *9n'7l case before us, is susceptible of an easy answer.* Ascertain the 
 ^ whole number of negroes employed on the plantation, during the 
 years 1822, '3, '4, '5 and '6, and the amount of the crops, and state a 
 proportion — as the whole number of the negroes employed is to the 
 amount of the crops, so will the twenty-five belonging to Mr. Yaux, be 
 to the share of the crops made by them. From this, must be deducted, 
 in the same proportion, their share of the rent, and the balance will be 
 the gross allowance to be made to the defendant. This, divided into five 
 parts, will constitute the annual allowance to be made to him, in each of 
 these years, for the services of the slaves. 
 
 It is, however, objected, that Mr. Yaux forfeited all benefit of this 
 allowance, by not attending the commissioner on the reference. To say 
 nothing of the short notice of the reference, and the hasty manner in 
 which the Commissioner thought proper to conduct and close it, it will be
 
 *207] CHARLESTON, APRIL, 1833. 143 
 
 enough for our present purpose to say, that the defendant's default did 
 not authorize the Commissioner to reverse the opinion of the Court of 
 Appeals, and set up a rule of accounting of his own, not authorized by 
 any thing in the cause. It was his duty, if he went on ex jyarfe, to have 
 made up the accounts on evidence furnished by the complainants ; but in 
 doing so, the rule fixed by the Court should have been his guide. 
 
 It is said, it was impossible to allow Mr. Vaux a proportion of the 
 crops, unless he attended and furnished the evidence of the number of 
 slaves belonging to the estate. To me it appears that the complainants 
 could easily, had it been necessary, furnished that evidence. They are 
 the present owners and have them in possession, and if they had shown 
 how many they received on their marriage, exclusive of the twenty-five, 
 the Commissioner might have taken that as the number, during the pre- 
 vious years, and made up his accounts accordingly. But there was no 
 necessity to have gone beyond the papers in the cause. It is stated, in 
 the defendant's answer, that the negroes of the estate amounted to seven- 
 ty-three, when he turned them over to the complainants. This was either 
 inclusive or exclusive of the negroes now in dispute, and without proof, 
 the Commissioner might very well have concluded that it was exclusive, 
 and this *would have made the whole number of the negroes era- ^^.9(^Q 
 ployed, ninety-eight ; and thus, one part of his proportion was L 
 ascertained. The amount of crops for '22, '3, '4 and '5, he has ascer- 
 tained and reported from the defendant's accounts ; the crop of '26 was 
 partially made when the complainants married, and the complainant, 
 Frazier, received it; the amount of it he could and ought to have fur- 
 nished, and thus the second part of the proportion could be obtained, 
 and then nothing remained but to set down the twenty-five negroes 
 belonging to the defendant, and the proportion was completed ; and any 
 one acquainted with the rule of three could have produced an answer 
 showing the gross allowance in favor of the defendant, from which would 
 be deducted his proportion of the rent ; and the nett result would be the 
 whole allowance to the defendant for the labor of his slaves. 
 
 But whether the problem was of hard or easy solution, it was the busi- 
 ness of the Commissioner to pursue the directions of the Court, and not 
 undertake to adopt his own notions of what was right and proper. If 
 he could not get on without Vaux's presence, and he had refused to 
 attend, he ought to have applied to the Court for fresh instructions, or he 
 might have been authorized by the Court to attach the defendant until he 
 did attend. The rule is a familiar one, that the Commissioner must con- 
 form to the instructions given to him by the Court. 
 
 In Remsen v. Remsen, 2 J. C. R. 501, Chancellor Kent says — " Or- 
 ders of reference should specify the principles on which the accounts are 
 to be taken, or the inquiry proceed, as far as the Court shall have decided 
 thereon, and the examination before the Master should be limitetl to such 
 matters within the limits of the order, as the principles of the decree or 
 order may render necessary." The Commissioner, according to these 
 observations, ought to have confined his examination to such matters as 
 were within the limits of the order. He was directed to inquire what 
 sum out of the crops the defendant should receive as a part owner entitled 
 to a share ; and instead of making an attempt to ascertain it, he recom- 
 mends the allowance of hire, which the Court had before repudiated, and
 
 144 SOUTH CAROLINA EQUITY REPORTS. [*208 
 
 *onqi '" ^^^ place had directed the account as between* part owners. To 
 ■^ allow such a report to stand, is to make the Commissioner the ap- 
 pellate jurisdiction, instead of the Court. 
 
 In Lupton v. White, 15 Yes. 432, the Master reported that he could 
 not make up the accounts, on account of the uncertainty of the evidence. 
 It was contended in that case, as in this, that the Master ought to have 
 charged the defendants with the whole produce of the mines, inasmuch as 
 they had not kept clear and distinct accounts, which they ought to have 
 done. The Lord Chancellor held, that it was the subject of further direc- 
 tions, and not of exception. He remarks, "If the result is that the 
 Master cannot take the account, it is clearly not for him, without a fur- 
 ther direction, to apply the great principle, familiar both at law and in 
 equity, that if a man, having undertaken to keep the property of another 
 distinct, mi.xes it with his own, the whole must, at law and in equity, be 
 taken to be the property of the other, until the former puts the subject 
 under such circumstances that it may be distinguished as satisfactorily as 
 it might have been before that unauthorized mixture upon his part. 
 There may be cases upon which the Master may charge parties upon that 
 principle ; but it must be under the direction of the Court, whether the 
 case is proper." 
 
 From the case of Lupton v. White, this principle is to be extracted — 
 that the Commissioner has no right to depart from the instructions by 
 which his account is directed to be made up, if it is even impossible, by 
 the default of the defendant, to conform to them. He must report the 
 fact, and let the Court give him fresh directions. If the case proceeds 
 ex 2)0''i'te, it is the business of the Commissioner to examine the case more 
 minutely, and attend more particularly to see that justice is administered 
 to the defendant, than if he had attended in person. The proposition is 
 very well enforced by Lord Redesdale, in the case of Carew v. Johnston, 
 2 Sch. & Lef. 300, in which he says, " The decree having been obtained, 
 the matter proceeds before the Master, and he makes a report which I 
 must consider as the report of the party, and not of the Master. I am 
 afraid reports of this kind are too often made, when no person appears on 
 *9M\1 *'^'^^ side. I think that very improper for it is the duty of the 
 -I Master to take the account, though the parties who might resist 
 the claim do not attend, with as much care as if they did, and even with 
 more jealousy ; for when the parties do attend, it is to be expected that 
 they will attend to their own business." 
 
 In the case before us, the Commissioner can have no difficulty in 
 making up his report according to the directions given, if he will take the 
 trouble to read this and the former opinion before he commences his 
 examination. 
 
 The defendant is clearly not entitled to commissions on the receipts 
 and expenditures of years in which he did not make returns to the Ordi- 
 nary. In those years in which he made returns, he is entitled to commis- 
 sions. This Court has no power to order an issue, to ascertain what 
 extra compensation should be allowed to an executor, when he has failed 
 to make regular returns. The default deprives him of the commissions 
 allowed by law, and also the right to recover extra compensation. 
 
 It is ordered and decreed that Chancellor Johnston's decree be reversed, 
 and that the cause be remanded with instructions to the Commissioner, to
 
 *210] CHARLESTON, APRIL, 1833. 145 
 
 make up his report according to the principles contained in the former 
 and this opinion. 
 
 Earle, J., concurred. 
 
 GrEORGE W. Prescott and Robert Eason vs. Sears Hubbell, George 
 TiMMONS, and others. 
 
 The 10th section of the Insolvent Debtors' Act, which incapacitates the debtor from 
 pleadin'ff the Statute of Limitation, relates only to demands existing at the time 
 of exhibiting his petition. [*212] 
 
 Lapse of time in Equity, in analogy to the Statute of Limitation at Law, will be a 
 bar to relief against fraud. [*2Li] 
 
 The difference with regard to the Stat, of Lim.,as applied to a case of fraud at Law 
 or in Equity, is in the time at which the cause of action is considered to accrue : 
 at law, the cause of action is regarded as accruing from the perpetration of the 
 fraud, in Equity from its discovery; and therefore in Equity the statute will bar 
 relief against fraud in four years after discovery ; and to take the case out of the 
 statute it should be stated in the bill, that the fraud was not discovered until 
 ■within four years before the bill was filed. [*214] 
 
 The Court refused to permit the plaintiff" to amend his bill, so as to allege that the 
 fraud was discovered within four years, when it appeared the fraud was known 
 to the plaintiff before that time.[*217] 
 
 The defendant, Hubbell, having been arrested under a ca. sa., applied 
 to the Court of Common Pleas for the benefit of the Insolvent Debtors' 
 Act ; and, in conformity *with its provisions, filed a schedule p^.^, . 
 of his estate. The creditors being dissatisfied, filed a suggestion L 
 alleging fraud on the part of Hubbell, in the conveyance of his property, 
 and in the transfer of funds which were invested in property and settled 
 on his family. It did not appear that the issue on this suggestion was 
 made up or tried, but the defendant amended his schedule, so as to include 
 all his "right, title, and interest in the property mentioned in the sugges- 
 tion ;" and on executing an aSwSignment to the plaintifi", Prescott, in trust 
 for his creditors, he was, on the 3d October, 1821, discharged by the 
 Court. 
 
 The plaintiffs are judgment creditors of Hubbell ; Prescott's judgment 
 was obtained prior to the discharge, and is that on which he was arrested : 
 Eason was a suing creditor at the time of the discharge, and obtained 
 judgment afterwards. 
 
 The bill was filed in March, 1829 : its object is to set aside the convey- 
 ances by Hubbell to the defendants, as fraudulent, and to subject the 
 property, which it is alleged was purchased with his funds, to the payment 
 of the plaintiffs' demands. 
 
 The defendant, Hubbell, in his answer, relied on the statute of limita- 
 tions. 
 
 The cause was heard at Charleston, January, 1832, by Chancellor De 
 Saussure. a great deal of evidence was then given on both sides, for 
 the purpose of proving and disproving fraud in the defendants, but whicli 
 it is unnecessary, under the view taken by the Court, to state. The 
 Chancellor overruled the plea of the statute, and ordered an issue at law 
 to try the questions of fraud. 
 YoL. I.—IO
 
 146 SOUTH CAROLINA EQUITY REPORTS. [*211 
 
 The defendant appealed, and moved to reverse this decree, on the 
 ground, that the statute of limitations is a bar to the plaintiff's bill. 
 
 Smith, for the motion, cited Booth v. Earl of Warrington, 13 Vin. 642 ; 
 3 P. W. 143 ; 1 M'C. 314 ; G Pet. 61. 
 
 Hicnt, contra. 
 
 O'Neall, J. From the view which I have taken of this case, it will 
 *9i9-i 0"^y ^^^ necessary that our opinion should be ^expressed on the 
 "* *^-' statute of limitations which has been relied upon by the defend- 
 ants, as a bar to the claim of the complainants. 
 
 The Chancellor overruled the plea, on the ground that " an insolvent 
 debtor is not at liberty to plead the statute of limitations in cases of 
 alleged fraud." This disability, if it exist, must arise out of some provi- 
 sion of the "Act for the more effectual relief of insolvent debtors," &c. 
 The 10th section provides, that "whereas, many creditors of the person 
 so sued and petitioning for his or her discharge, may not be inclined to 
 accept a dividend of such ])etitioner's estate, but will rather wait in hopes 
 of securing some fuller expectation from the said petitioner's future bet- 
 ter fortune ; but in as much as the said creditors by note, book account, 
 or contract, who, through indulgence or better expectation may delay 
 suits against such petitioner, may become barred Ijy the act of limitations 
 of this Province ; be it therefore enacted, that any person or persons 
 whatsoever, who shall be hereafter in the custody of the Provost Marshal 
 of this Province, or of his gaol keeper or deputy, and who shall once 
 petition the Justices of this Province for his or her discharge, every such 
 person or persons, his or their executors or administrators, shall be inca- 
 pacitated ever afterwards to plead the act of limitations of this Province, 
 in bar to any action that may be afterwards brought against him or them, 
 by any person or persons that were his or their creditors, for any demand 
 or cause of action that existed at the time of exhibiting the petition for 
 the discharge of the said person when in custody. And in case the act of 
 limitation of this Province shall afterwards be pleaded by any such per- 
 son or persons, the said plea shall be set aside by the Court where such 
 action shall be brought, upon motion made by the plaintiff or his attorney 
 in such action, n])on producing the petition before exhibited by the de- 
 fendant for his having the benefit of this act." P. L. 251. It is only 
 necessary that the clause should be stated, to satisfy every one that it does 
 not apply to this case. The preamble, which is said to be the key to the 
 enactment, shows that it was intended for the protection of such creditors 
 *'>131 ^^^^° might neither sue nor accept a *dividend of the debtor's 
 -J estate. The very next clause provides the means whereby evi- 
 dence of such debts may be perpetuated, and repeats the denial of the 
 benefit of the statute of limitations. The present plaintiffs were suing cred- 
 itors, at the time the defendant, Hubbell,took the benefit of the insolvent 
 debtors' Act, and one of them is his assignee ; they cannot, therefore, claim 
 that as against them he cannot plead the statute of limitations. His 
 discharge under the insolvent debtors' Act was a discharge from their 
 debts, and the only claim which they can have against him, is under the 
 assignment. The " demand or cause of action " arising from it, did not 
 exist "at the time of exhibiting his petition for his discharge ;" it is sub-
 
 ^213] 
 
 CHARLESTON, APRIL, 1833. 147 
 
 sequent thereto, and it is not even within the letter, mncli less tlie mean- 
 ing of the section quoted. But it must be remembered, that Hubbell in 
 this ease claims to hold the property in dispute not for himself, but as a 
 trustee for his wife and children ; they are parties, and if the defence of 
 the statute of limitations was not even competent for him, it would be for 
 them, and if sufficient to protect them, would prevent a decree from being 
 made which would defeat their title. It is therefore perfectly immaterial 
 in what way it is interposed, whether by Hubbell or his cestui que t7'usts, 
 its legal elfect must be considered and decided, in precisely the same 
 manner as if Hubbell had never taken the benefit of the insolvent debtors' 
 Act. 
 
 It is true, that the words of the act of limitations do not in terms 
 provide a time within which such suits for relief against frauds must be 
 brought ; yet lapse of time in Equity, in analogy to the statute, has been 
 held to bar relief for fraud. If an action at law were brought to recover 
 damages for a fraud, it would be an action on the case and barred in four 
 years, by the provisions of the Act of 1712. The gravamen of the action 
 at law is the deceit and the injury consequential on it. To entitle a party 
 to relief from a fraud in equity, he must show that he is prejudiced by it, 
 and in consequence of this prejudice or injury it is that the Court pro- 
 ceeds to decree against the fraud. The analogy between the action on 
 the case for a fraud, and a bill in equity to be relieved against it, is as 
 direct as can exist between a case *in a Court of Law and a case r^^ij 
 in a Court of Equity. L 
 
 When does the cause of action for a fraud accrue ? In equity, there 
 is no doubt that it accrues from the discovery of it. The party may then 
 proceed and obtain relief, and if he fail to do so for four years, is not the 
 reason just as strong, that he should be barred in equity, as at law ? 
 The only difference perhaps in the law in this respect, as applied to a 
 case at law or in equity, arises from the time at which the cause of action 
 is considered as accruing. Generally, the legal cause of action is regarded 
 as accruing from the time the fraud waS perpetrated ; the equitable cause 
 of action, from the discovery. This seems to me the only distinction ; 
 and the statute would run against relief from a fraud from the time of its 
 discovery, wherever an action at law, if it could be brought for the same, 
 would be within the act. I myself regard a bill in equity for relief 
 against a fraud as a personal action, accruing to the party in consequence 
 of the injury done to his rights ; and that generally, he would be barred 
 in four years from the discovery of the fraud. The rule in equity is when 
 more than four years have elapsed before filing the bill for relief, that the 
 complainant should state in his bill that the fraud was discovered within 
 four years before the bill was filed. In Vin. Ab. 13, 542, it is said, 
 " where fraud is, no length of time can bar. And it was admitted by the 
 counsel on the other side, that no time will bar where there is a fraud, but 
 said that that is to be understood where the fraud is concealed. For if 
 it be known, it certainly may, and of this opinion Lord Chancellor KiN<i 
 seemed to be." The same doctrine is sustained by the South Sea Com- 
 pany V. Wymondsel, 3 Pr. AVm. 143. The case of Black and wife, and 
 others, v. M'Junkin, executor of Thomas et al., decided at Columbia by 
 the Court of Appeals in Equity, proceeded upon the principle that after 
 a lapse of four years from the discovery of the fraud, the statute would
 
 148 SOUTH CAROLINA EQUITY REPORTS. [*214 
 
 bar the relief. In that case, an insolvent debtor who had taken the 
 benefit of the Act, just before applying to be discharged, fraudulently con- 
 veyed certain slaves to his father. The bill was filed by the suing 
 *9i ^1 *creditor, but there was no allegation in the bill that the fraud had 
 "■ ^ been discovered within four years before the filing of the bill. 
 The original bill abated by the death of the elder Thomas, and was re- 
 vived after four years, against his executor, and the legatees of the slaves 
 fraudulently conveyed to him by his son, the younger Thomas. It was 
 held, by the whole Court, 1st. That it was neceseary that it should 
 have been alleged that the fraud was discovered within four years before 
 the filing of the bill, to prevent the operation of the statute : and, 2dly. 
 That the plaintiffs were barred. In Yan Rhyn v. Yincent, 1 M'C. Ch. 
 Rep. 310, Judge Nott remarks : "And even in cases of fraud, the Court 
 of Equity will allow the statute to run from the time the fraud is dis- 
 covered." 
 
 These authorities put it beyond all question, that the statute will run 
 against relief claimed in cases of fraud, from the time it is discovered ; 
 and that to take the case out of the statute, it is necessary that it should 
 be stated in the bill thSt it was not discovered until within four years 
 before the bill was filed. The application of these principles to the case 
 before us, is plain and obvious. For it is plain, that whatever was the 
 fraud existing in the conveyance of the property to the defendant Hubbell, 
 in trust for his wife and children, it existed and was known to the assignee, 
 Prescott, at the time the defendant was discharged under the Insolvent 
 Debtors' Act. The suggestion which he then filed to prevent his dis- 
 charge, incontestably proves that fact. It is not set out in the bill, that 
 the fact of fraud in the conveyances was discovered within four years 
 before the filing of the bill. The defendant, Hubbell, as trustee, and his 
 family his ceatui que trusts, cannot be regarded as holding by a secret 
 fraud. If a fraud exists in the transaction, it was well known, and they 
 cannot, therefore, be said to have held apparently in one right, and 
 secretly in another, which would'have dej-iived them of the benefit of the 
 statute. Their rights were adverse to the rights of Huljbell's creditors. 
 But it is said, the statute cannot be pleaded to the judgment obtained by 
 Prescott against Hubbell. To say nothing of the effect of the assign- 
 *216l ™^"^ ^"^^ discharge under *the Insolvent Debtors' Act, which is 
 ■^ itself a discharge of the debt to Prescott, and of course of the 
 active lien of the judgment, it can, I think, be demonstrated, that the bar 
 to the relief claimed here is no bar to the judgment. The party does not 
 come here to have execution of his judgment, or to recover upon it, as 
 his immediate cause of action : if he did, then, it is true, the statute 
 would not apply. His remedy, in both these respects, is at law. If 
 legally the property in dispute is subject to the lien of the judgment, the 
 complainant has no business in this Court — his execution would have 
 given him ample relief. But the title to the property claimed to be sub- 
 jected to the payment of the plaintifi''s debt, never was in Hubbell in his 
 own right. He is a mere trustee, to whom the conveyance was made. 
 There can, therefore, be no legal lien of the judgment. The plaintiffs' 
 equity is, that the money of Hubbell, which ought to have been applied 
 to the payment of their debts, was vested in the purchase of the property. 
 This at most is a mere resulting trust, and the right to set it up as against
 
 *216] CHARLESTON, APRIL, 1833. 149 
 
 the defendants, must depend upon the fact whether the money which is 
 the foundation of it, could be recovered by the assignee from the cestui 
 que trusts, (to whose use it is alleged to have been applied) if it were in 
 their hands as a donation from Hubbell. No one I presume will doubt 
 that at law he could not recover it after four years, and in this Court the 
 only difference as to the operation of the statute of limitations, would be 
 the substitution of the discovery of the fraud, for the accrual of the cause of 
 action at law. It was known to him in 1821, as he alleges in his sug- 
 gestion that the property was purchased with Hubbell's money. Seven 
 years and four months after his knowledge of it, he files this bill, virtu- 
 ally for the recovery of the money invested in the purchase of the pro- 
 perty. To a claim for an account for the money applied by Hubbell in 
 the purchase of the property, the statute would be a good defence by his 
 cestui que trusts; and it seems to me it must be so likewise against 
 the claim to set up the resulting trust. This is not depriving the judg- 
 ment of any of its legal effects — it is merely refusing to suffer fraud or a 
 resulting trust, to be set up to defeat a *Iegal title, when more r*oii7 
 than four years have elapsed, after the plaintiffs have a knowledge ^ 
 of the fact on which their claim to relief is predicated. I am, therefore, 
 satisfied that the statute is a protection to the defendants. A motion 
 was made for leave to amend, by alleging that the fraud was not dis- 
 covered until within four years before the filing of the bill. This is an 
 application to the discretion of the Court — and we should not hesitate, 
 even at this late stage of the case, to allow the amendment, if any good 
 could result from it. But the facts are all before us, and we are perfectly 
 satisfied that they show conclusively that the fraud was known to the 
 plaintiffs more than four years before the filing of this bill. It may be, 
 that they had not all the evidence of it then which they have now ; but 
 that is not the point on which the question turns — it is, whether they 
 knew of the fraud, not whether they could prove it. The motion to 
 amend, must, therefore, be refused. 
 
 It is ordered and decreed, that the Chancellor's decree be reversed, 
 and the bill be dismissed. 
 
 Johnson and Earle, Js,, concurred. 
 
 Therese Benoist, Administratrix of J. L. Sompeyrac vs. Peter 
 PoiRiER, Administrator of Louis De Villers. 
 
 One who was authorized by power of attorney, to demand and receive a legacy for 
 his principal became indebted to the executor, in whose hands the legacy was, 
 and failed ; afterwards, by letter to the executor, he acknowledged that he wa3 
 indebted to him a balance of two thousand eight hundred and ninety-one dollars, 
 and promised to account to his principal for this sum, as so much of the legacy; 
 but he gave no discharge to the executor, nor did he receive one from his debt, 
 nor was there any agreement that one demand should go in payment ot the other : 
 Ifeld, that this was not a payment by the executor, which would discharge him 
 for that amount.[*22l] 
 
 It seems, that even if there had been an agreement between the executor and tho 
 attorney, that the debt due from the latter to the former, should be regarded as 
 so much payment of the legacy, and mutual acquittances given, it would not, 
 under such circumstances, be a compliance with the power, and therefore void. 
 [*222J
 
 150 SOUTH CAROLINA EQUITY REPORTS. [*217 
 
 Theodore Sompejrac, by his last will, bearing date the day of 
 
 1822, gave the residue of his estate, to be held by his executors, 
 
 liable to the draft of his father, or, in the event of his death, of his mother- 
 of which will be appointed Louis De Yillers and A. Fourgeaud, his execu- 
 tors, and soon afterwards died, leaving his fiither, Jean Louis Sonipeyrac, 
 and his mother, Desire Sonipeyrac, him surviving. De Villers and Four- 
 *9iQl geaud proved the will and *administered the assets; the residue 
 -J in their hands, after paying the debts and legacies, was $4,098, 
 which in February, 1829, De Villers passed to the credit of De Villers 
 find Poirier, assignees of Sompeyrac and Petitpain, upon the supposition 
 that Jean Louis Sompeyrac was indebted to them in an equal or greater 
 amount; but in fact, Jean Louis Sompeyrac was not so indebted. The 
 
 said Jean Louis Sompeyrac died in *at Bordeaux, in France, 
 
 and by his last will gave all his estate to his widow. Desire Sompeyrac ; 
 l>ut the will was never proved in America. The bill was filed by Therese 
 Benoist, to whom administration of the estate of J. L. Sompeyrac has 
 been committed by the Ordinary of Charleston District, for an account 
 and settlement of the estate of Theodore Sompeyrac. 
 
 The defendant, Peter Poirier, by his answer, admits the balance of 
 $4,089, for which the estate of Louis De Villers is accountable; but 
 insists that a part of the sura, to wit, $2,891 has already been received 
 by Desire Sompeyrac, who, as executrix of J. L. Sompeyrac, had a right 
 to receive it, and is also the party beneficially entitled in this suit. In 
 support of his defence, the following case was made at the trial. 
 
 Jean Louis Sompeyra and Desire Sompeyrac, his wife, about the 12th 
 day of February, 1823, gave to their son, Melisse Sompeyrac, a general 
 ])0wer of attorney, "to demand and receive all such sums and property 
 as they, or either of them, were entitled to, under the will of their son, 
 Theodore." Melisse Sompeyrac came to Charleston, and entered into 
 business with Hyppolite Petitpain, under the firm of Sompeyrac and 
 Petitpain. De Villers became their endorser to a great amount ; and 
 while Melisse Sompeyrac was in Mexico, Petitpain executed a deed, by 
 which he assigned all the goods, moneys and effects belonging to Som- 
 peyrac and Petitpain, to De Villers and Poirier, in trust, in the first 
 place, to indemnify them, and in the next place, to satisfy the creditors 
 generally of Sompeyrac and Petitpain. Notice of this assignment was 
 communicated to Melisse Sompeyrac, who assented to it, and acknow- 
 *9i Q-| ledged that he held *in his hands $2,891, for which he was account- 
 -• able ; but insisted on retaining it, as the attorney of his mother, 
 who was entitled, as the legatee of J. L. Sompeyrac, to the residue of 
 Theodore Sompeyrac's estate, in the hands of De Villers ; as appears by 
 the following letter : 
 
 [Translation.] " Mexico, 15th April, 1828. 
 
 "Dear Sir : — I have received your friendly letter of the 21st Novem- 
 ber, by Mr. Giraud. I will not repeat to you what I have said in my former 
 letters, on the subject of the enormous losses that we have sustained in 
 this country. It is sufficient that they have been, in part, the cause of 
 our ruin." [Here follows a detail of circumstances which it is unneces- 
 sary to state ] "I saw Mr. Giraud yesterday, to whom I gave all the 
 accounts relating to our unfortunate affairs. You will see, by the result
 
 *219] CHARLESTON, APRIL, 183o. 151 
 
 that there is a sum of $2,891 51, that I am answerable for, ns a balance." 
 [A statement of his partnership accounts and commercial transactions 
 here made, is omitted.] 
 
 "You will see, my dear sir, that I am accountable for the above men- 
 tioned sum, which I hold, subject to the order of whoever is entitled. 
 But by the letters, v/hich I have received from Charleston, I am informed 
 that you have received from the estate of my brother, five or six thousand 
 dollars, more or less. From this sum must be deducted the amount due 
 to Messrs LePrince & Dumont, which I consider perfectly just. And as 
 to that of the Messrs. Benoists, you can have an understanding with 
 them, The residue will belong to my mother, who is legally the legatee, 
 under my father's will ; and as I have been authorized by their joint and 
 several power of attorney, which is deposited in the French Consulate at 
 Charleston, I shall be obliged to give an account of the sum which you 
 will have received. Have the goodness to hand to Mr. Giraud a state- 
 ment of what you have received, in order that we may ascertain the 
 balance. You can come to an understanding with friend Fourgeaud, to 
 whom I will write ou this subject ; and will speak to Madame Benoist, to 
 whom I have sent a copy of ray power of attorney." * * * 
 
 *"I received Mr. Poirier's letter at the same time with yours, r^g^,. 
 You may communicate this to him. L -'-' 
 
 I have the honor to be, &c." 
 
 The assets of Sompeyrac and Petitpain fell short of the sums for which 
 DeVillers was responsible for them ; and a very large sum is still due him 
 on that account. To prove that this sum had been actually paid to De- 
 sire Sompeyrac, the following letter from her was produced. 
 
 [Translation.] " Bor^deaux, 28th June, 1831. 
 
 "Sir: — I have received your letter of 16th May, which informs me 
 that you are administrator of the estate of the late Mr. DeVillers, and 
 that you have in your hands the sum of $4,089, arising from the estate of 
 my deceased son, Theodore, of which you say that my son Melisse ought 
 to account to me for $2,891 55, and that you have no objection to pay 
 the difference to my attorney. My sou Melisse has been a long time 
 absent, I presume in England. I have just had his papers examined by 
 one of my friends. He has found in effect an account of his agency, 
 dated Mexico, 29th February, 1828, balanced by $2,891 51 ; but my 
 friend remarked that this account had no connexion with the estate of m}' 
 son Theodore, but only with the house of Sompeyrac & Petitpain, of 
 Charleston. These gentlemen owe to my deceased husband a large sum 
 for advances and shipments which he made for their account, and the 
 above named sum would be but a small set off. However, sir, as I am 
 an enemy of law suits, I write to my mother by the same opportunity, and 
 engage her and give her full authority to settle with you definitively and 
 amicably, and to see, if necessary, some mutual friends, who can decide 
 the matter. I recommend to her, in my behalf, to avoid the expenses of 
 the law. Be pleased sir, to see her on the subject, and believe me your 
 devoted servant, &c." 
 
 At May Term, 1832, the case came before his Honor, Chancellor De 
 Saussure, who made the following decree.
 
 152 SOUTH CAROLINA EQUITY REPORTS. [*220 
 
 " It appears by the answer of Mr. Poirier, that on settling the affairs 
 of Theodore Sorapeyrac, there is a balance of $4,089 due by the execu- 
 tors to the estate of Theodore Sompeyrac, which is ready to be paid over 
 ^gg,-] to the legal representatives of *Jean Louis Sompeyrac, the leg- 
 -J atee, unless the Court should be of opinion that the estate of De 
 Villers is entitled to retain the whole or part of the above sum, under the 
 following circumstances : After the death of Theodore Sompeyrac, his 
 father and residuary legatee (and mother) gave a power of attorney to 
 his son, Melisse Sompeyrac, to collect and receive whatever might be 
 coming to him from the estate of his son Theodore. Melisse came to 
 this country, formed a co-partnership with Mr. Petitpain, carried goods to 
 Mexico, and failed in debt to DeYillers. 
 
 " The administrator of DeVillers claims the right to deduct from the 
 balance due by the executors of Theodore Sompeyrac to the estate of 
 John Louis Sompeyrac, the amount due by Melisse, or rather by Som- 
 peyrac & Petitpain, to DeVillers. 
 
 "It appears to me that these demands are entirely indistinct rights, 
 and cannot be set off as claimed. The administratrix of J. L. Sompey- 
 rac is entitled to be paid the above balance, to be applied in the course 
 of administration ; and if Melisse is entitled to any part of the funds, 
 the administratrix to apply his share to pay his debt. It is therefore 
 ordered and decreed, that the defendant pay to the complainant the 
 balance admitted to be due to the representatives of John Louis Sompey- 
 rac, with interests and costs of this suit." 
 
 From this decree the defendant, Peter Poirier, appeals, and insists that 
 the real question is whether Desire Sompeyrac, the widow and executrix 
 in France, of Jean Louis Sompeyrac, received, through her attorney and 
 son, Melisse Sompeyrac, the sum of $2,89L 
 
 That this question is by the evidence settled in the affirmative, and that 
 of course the plaintiff in this action, suing for the benefit of Desire Som- 
 peyrac, can only recover the residue, after deducting $2,89L 
 
 Pettigru, for the appellant. 
 
 Earle, J. The Chancellor refused to allow the defendant the benefit 
 of $2,891, which he claimed to have deducted from the plaintiff's demand, 
 *9991 ^s so much received by *Melisse Sompeyrac, the agent and attor- 
 "'-J ney of Desire Sompeyrac, for whose benefit the suit is brought. 
 It is alleged that the Chancellor is mistaken, in saying that the " demands 
 are entirely in distinct rights, and cannot be set off as claimed :" for the 
 defence is not set up by way of discount, but of actual payment ; and 
 that this defence is supported by the evidence. Passing by any objection 
 which might be raised to the validity of the power itself, as having been 
 executed by a married woman, at a time when she had no subsisting in- 
 terest ; or admitting that there may be evidence of a subsequent confir- 
 mation, it is not very clear that the Chancellor is mistaken in supposing 
 this to be a naked offer to set up against the demand of the plaintiff, a 
 debt due to the defendant's intestate, from the plaintiff's agent. Melisse 
 Sompeyrac, the agent and attorney of Desire Sompeyrac, at the utmost, 
 only acknowledges himself to be indebted to DeVillers in the sum of 
 $2,891, which he is answerable for, as a balance ; and after referring to
 
 *2-i2] 
 
 CHARLESTON, APRIL, 1833. 153 
 
 the assets of his brother, in the hands of DeYillers, and to liis power of 
 attorney, professes to be accountable to Desire Sompeyruc, his mother, 
 for that sum. This would be giving his letter a most liberal construction 
 for the defendant. There is no evidence that DeYillers ever assented to 
 this proposition — he did not discharge Melisse Sompeyrac, nor receive 
 from him any acquittance, from the demand of the plaintiff. So far as 
 there is evidence, it is the reverse ; from the letter of Desire Sompeyrac, 
 three years after the date of that of Melisse Sompeyrac to himself, he 
 seems to have stated to her, (and the evidence comes from himself,) that 
 her son ought to account for the sum of $2,891. There is not even an 
 agreement, between the attorney and DeVillers, to regard the balance 
 due the latter from the former, as a payment of so much of the 
 legacy. 
 
 If it were otherwise, and admitting, for the sake of argument, that 
 there was an agreement to that effect, and mutual acquittances, yet it 
 would not be a compliance with the power, and therefore void. The 
 terras of the power are certainly as various, and the authority given is as 
 comprehensive, as can well be imagined. Yet, in giving it its true 
 *interpretation, and in deciding upon the conformity of his act, pooQ 
 under it, we must have regard to the object originally had in view, L 
 and the means contemplated through the agency of the attorney. The 
 power is dated 12th February, 1823, very soon after the death of Theo- 
 dore Sompeyrac, their son, and the primary object was to recover for 
 them, and in their behalf, his estate ; and the general authority, first 
 given, is to seek for and recover all property, real and personal, which 
 may belong to the estate of the said Theodore Sompeyrac. The subse- 
 quent specification of powers, as minute as it is possible, seems to con- 
 template that the attorney is to take upon him the actual administration 
 of the estate, perhaps without knowledge of the will ; for many things he 
 was appointed to do, could only be done, without doubt, by an executor 
 or administrator — when, therefore, power is given to renounce claim to 
 the debts and credits of the estate, and "in all cases where it may be 
 necessary, to compound, compromise, covenant, and appoint arbitrators," 
 these taken in connection with other powers, as to " sue for all sums of 
 money, pay all that may be due," evidently have reference to a general 
 course of administration, for the purpose of realizing the assets, and cer- 
 tainly do not contemplate the intervention of an executor or administra- 
 tor, from whom alone the attoi'ney could receive the fund, and whom 
 alone it would be necessary to sue. The power to renounce, to compound, 
 to compromise, had relation only to debts and claims, existing for and 
 against the estate. It is true, th« power must be regarded as both gen- 
 eral and special ; and after the estate had been fully administered by the 
 executors, who alone had control over it, Melisse Sompeyrac, as attorney 
 under the power, had unquestionable authority to receive the legacy Irora 
 them. But in that state of things, with full knowledge that the whole 
 estate was actually in the hands of the executor, as he admits, upon the 
 most liberal construction of the power he had authority only to demana 
 and receive payment, and, as a consequence, on nonpayment,_ to ^"^"J"^J 
 proceedings. If the power were to receive payment only, it is clear that 
 nothing but an actual* receipt of the money would sutliee. The [-*224 
 attorney, under such a power, could not accept a note of another,
 
 154: SOUTH CAROLINA EQUITY REPORTS. [*224 
 
 in discharge. Sucli an acceptance would not bind the principal ; and if 
 the principal would not be bound in that case, certainly he would not be 
 bound where the attorney agrees to accept, in discharge, an unliquidated 
 claim or demand upon another, an insolvent person. 11 Mod. 71, 87 ", '2 
 Ld. Ray. 928. Here the case is still stronger against the defendant and 
 attorney, for the claim and demand alleged to be accepted, in discharge, 
 was one upon the attorney himself, which the former had no other means 
 of securing, and the latter no other means of paying. This can never 
 be allowed — and if we construe the words, "compound and compromise" 
 in their most enlarged sense, and as applying as well to the claim upon 
 the executors as to claims previous to administration, it would be equally 
 a violation of law, and a fraud upon the principal, to permit the attorney 
 to compound or compromise the right of the principal, by accepting in 
 discharge of a claim which he knew to be perfectly good, a debt upon 
 himself, an insolvent person according to his own acknowledgment. 
 The decree of the Chancellor is affirmed. 
 
 Johnson and O'jSTeall, Js., concurred. 
 
 Sarah M. Drayton v. Thomas S. Grimke, Administrator, and others. 
 
 The testator by his will, disposed of his whole estate, and amongst other things, 
 bequeathed certain negroes to his son, W. II. D. during life, remainder over; and 
 by another clause, directs "his estate to be kept together until his debts are 
 paid ; it was held, that the testator meant no more than that the absolute right 
 of the legatees should not vest until his debts were paid ; that the restrictive 
 clause applied only to the mass of the estate, and not to the specific legacy ; and 
 (the tenant for life being dead,) that the legatee in remainder was entitled to the 
 immediate possession of the negroes, although the debts were not paid, and could 
 retain them until the rest of the estate should prove insufficient to pay the 
 debts. [*225] 
 
 A bequest of " Driver Dick and his family, to wit, his wife and children," includes 
 only the wife then living, and the issue of their cohabitation. [*227] 
 
 Where a contingent legacy in remainder was given on the legatee's attaining 
 twenty-one, and assuming the surname of the testator, and there was nothing iu 
 the will showing an intention on the part of the testator to provide a fund for 
 maintenance and education: Held, that the legatee in remainder was not entitled 
 to the intermediate profits of the legacy, from the death of the tenant for life 
 until the estate vested in him.[*227] 
 
 Earle, J. The questions presente(^for the consideration of the Court, 
 arise under the will of Thomas Drayton, deceased, and relate to the con- 
 tingent legacy to Thomas Drayton Grimke, iu remainder, on his attaining 
 the age of twenty-one years, and assuming the surname of the testator, 
 the event having occurred, and the condition being complied with. The 
 *99'S1 ^^^^^^ is in these words. " Item, I give and bequeath *my driver 
 -" Dick, and his family, to wit, his wife and children ; also my carpen- 
 ters, Robert, Joe and Jim, and my house servants, George and Daniel, 
 with the future issue of the females, from this date, to my son William 
 Henry Drayton during his natural life," with limitation over, and on 
 failure thereof, a portion of the said negroes the testator bequeaths to his
 
 *225] CHARLESTON, APRIL, 1833. 155 
 
 grandson, on the event and condition above stated. Having attained 
 twenty-one years of age and assumed the name of Thomas Grimke Drayton 
 the previous limitation having failed, and the legacy having vested, he 
 claims the present possession of the negroes ; and the question, wliich is 
 confined by the case made to driver Dick and family, George a coachman 
 and Robert a carpenter, is whether he is entitled to the immediate pos- 
 session of them, or whether they are embraced within the general provi- 
 sion of the first clause of the will in these words, " I will order and direct, 
 that my estate be kept together until my just debts are fully paid and 
 satisfied ;" it being admitted that this has not yet been accomplished. It 
 is conceived that this question has been concluded by the opinion of the 
 Court of Appeals, on other clauses of the will containing bequests to the 
 daughters of negroes, of a similar character and using the same phrase- 
 ology ; as " I give and bequeath the following house servants, to wit, Sam, 
 London and Carpenter Abrara, with the increase to such of my daughters 
 as are unmarried ^t ray death, as long as they shall continue unmarried ;" 
 and as in this clause, " I give and devise to such of my daughters as shall 
 continue unmarried at my death the use of my plantatation on Ashley 
 called Magnolia, and the adjoining tracts." Upon these and other similar 
 clauses containing bequests to the daughters, this Court held an Appeal 
 from the Circuit decree of the Chancellor, that this property, Magnolia 
 and the other tracts of land, as well as the negroes, were exempted from the 
 operation of the general clause declaring the estate to be kept together, 
 that the testator did not intend to deprive the objects of his affection and 
 bounty of the immediate use of the property, and that they were entitled to 
 present possession. It is conceived, that all the reasoning of the Court 
 
 in that case, applies with equal force to the *clause now in ques- 
 
 [*226 
 
 tion ; and I think the Chancellor in the present case has been led 
 into some misapprehension in the view he has taken of that decision. 
 Magnolia, a place no longer cultivated, and the carriage and horses, were, 
 it is true, considered as unproductive, not available to any extent in pay- 
 ing off the debts ; and it seems to be insisted, that the testator could not 
 have intended to deprive his daughters of the present use or to postpone 
 the enjoyment until the legacy might be no longer beneficial. But it 
 could not be well or truly said, that the negroes, although not field hands, 
 were unproductive, for there were three fellows, one a carpenter, and 
 three grown women, contained in the clause in favor of the unmarried 
 daughter. The Court say, " by the clause kept together until the debts 
 are paid," the testator meant no more than that the absolute right of the 
 legatees and devisees in their respective shares should not vest until the 
 debts were paid, because, although the productive part of the estate was 
 competent to the payment of his debts at that time, yet by some casualty 
 this expectation may have been disappointed, and in that event the specific 
 legacies may Jiave been necessary for the payment of the debts, and this 
 is by no means inconsistent with the present use by the respective legatees. 
 They may enjoy the property until that event shall happen, or until the 
 claims of the creditors are enforced, which the testator would not have 
 restrained by any provision in his will." 
 
 I think, therefore, that the Court intended to decide that the general 
 clause, directing the estate to be kept together, was not intended to era- 
 brace the specific legacies— and that all the negroes specifically be-
 
 156 SOUTH CAROLINA EQUITY REPORTS. [*226 
 
 queathed, passed immediately. Having so held in relation to the devises 
 and bequests to the daughters, a different rule of construction cannot now 
 be adopted, in relation to a clause using the same phraseology, and be- 
 ((ueathing negroes of a similar description. It will be borne in mind, 
 that they formed but a small portion of the estate, and the Court seems 
 to have considered the restrictive clause as intended only to apply to the 
 mass of the estate, which forms the residue for final distribution. This 
 *c)9»7n ■^isw is strengthed by *the fact that William Henry Drayton the first 
 -l taker, had but a life estate. And as he had no other estate than 
 this, and the mass of property intended for him constituted the fund for 
 the payment of debts, it is most likely that the special provision in this 
 '•lause was intended for his.immediate use — a portion of this legacy having 
 now vested in Tliomas Grirake Drayton, it is the opinion of this Court 
 that he is entitled to the immediate possession of the negroes in ques- 
 tion. The decree of the Chancellor, on this part of the case, is therefore 
 reversed. 
 
 Another question relates to the meaning of " Driver Dick and his 
 family, to wit, his wife and children ;" and as Dick, at the date of the* 
 will, had children by former wives then dead, it is asked whether they 
 pass under the term 'children.' The testator, by adding the words "to 
 wit, his wife and children," has clearly put the same construction on the 
 word "family," which the Court would have done after the case of 
 Pringle v. Executors of M'Pherson, 2 Eq. Rep. 524, and obviously in- 
 tended only the wife then living at the dale of the will, and the issue of 
 their cohabitation, as the Chancellor has decided. Their being grand- 
 children born after the execution of the will, it might be questioned, since 
 the case of Tydiman v. Rose, decided here last term, whether they would 
 pass. But the terms of the bequest avoid this question, for they ex- 
 pressly include the children of Dick, with the future issue of the females, 
 from the date. 
 
 The last question relates to the intermediate profits, from the death of 
 William Henry Drayton, the first tenant for life ; and it is asked, whether 
 Thomas Grimke Drayton is entitled to receive them, or they become a 
 portion of the residue for the payment of debts. This question was 
 fully considered by this Court, in a former occasion, in relation to this 
 very legacy, and it was decided, that as the legacy to the present claimant, 
 and others standing in the same relation, was contingent, and there was 
 nothing in the will to indicate an intention, on the part of the testator, to 
 provide a fund for their maintenance and education, they were not 
 *298"l ^"^^^^^^ ^^ interest. Ihe intermediate *profits stand under the 
 -I will in the place of interest; if Mr. Drayton was not entitled to 
 interest until the legacy vested, he is not entitled to the profits. On the 
 two last questions presented, the decree of the Chancellor is afiBrmed. 
 
 Johnson and O'Neall, Js., concurred. 
 
 King, for the appellant. 
 
 Pettigru, contra.
 
 '228] CHARLESTON, APRIL, 1833. 157 
 
 Magwood and Patterson v. Agnes Johnson, and others. 
 
 How far and under what circumstances, trust estates will be held liable for debts 
 contracted for their benefit, or in furtherance of the objects of the trust. [*231] 
 
 The equity of a creditor to render a trust estate liable for his debt, is that he has 
 advanced his money, or given his credit to effect the objects of the trust, and in 
 charging trust estates with such debts, every estate must bear its own burthens. 
 [^232] 
 
 To expend money for the benefit of a trust estate, means either adding to its value 
 or defraying charges to which it would be liable. [*2.34] 
 
 The wife's separate estate, in general, is not liable for the expenses of herself and 
 family — the husband, if he be of ability, is bound to support his family ; and if 
 he contract debts for the support of his wife and children, and the credit is given 
 to him, neither the separate estate of the wife, nor the remainder to the children, 
 is liable for such debts, although the husband should prove insolvent. [*234] 
 
 Although the wife cannot by her own mere act, charge her separate estate, if she 
 is under the necessity of supporting herself and family on the credit of her 
 estate, she may do so, but the Court, before making her estate liable, will see 
 that such necessity existed, and that the advances of money or goods were 
 proper ; and with respect to such an account, the dealings should appear to have 
 been bona fide with the wife, and not with the husband: Therefore where, by 
 marriage settlement, the fortune of the wife was settled to her separate use 
 during life, remainder to the issue of them arriage : and the husband's estate 
 was settled on himself during life, remainder also to the issue, subject to an 
 annuity to the wife ; and the husband, during coverture, having charge of the 
 trust estates, contracted debts for necessaries for his family, and for supplies to 
 the plantations, and died insolvent: Held, that neither the life estate of the wife 
 nor the remainder of the children, was liable for such debts ; but if the husband 
 acted as his wife's agent, in furnishing necessaries for herself and family, and in 
 procuring supplies for her separate estate, and if such an account was necessary 
 and proper, her separate estate will be charged with it. ["230] 
 
 By a marriage contract, bearing date the 8th of April, 1807, between 
 Archibald Simpson Johnson, of the first part; Agnes Evving of the 
 second part ; and James Ewing, John Evving, Robert William Ewing and 
 David Lamb, trustees, of the third part ; it was agreed, that all the estate 
 to which Miss Ewing was entitled,' and nearly all Mr. Johnston's, should 
 be settled as follows, to wit: the fortune of the lady, to her sole and 
 separate use during her life, and after her decease, to the issue of the 
 marriage : and the estate of A. S. Johnston, to his use during life, and 
 after his decease, in trust, to raise an annuity of £200 per annum, payable 
 to the said Agnes in case she survived him, during her life, and subject 
 thereto, and then to the issue of the marriage. 
 
 After the marriage, negroes were bought with Mrs. Johnston's money, 
 and placed with Mr. Johnston, on his plantation, nor did the trustees 
 interfere ; but the whole estate was under one management, in the hands 
 of Mr. Johnston. No deed was executed, to carry the contract mto exe- 
 cution. From untoward circumstances, Mr. Johnston was compelled to 
 live on credit. In January, 1818, he borrowed* from a fnend |-^229 
 $2,000, and immediately laid it out in paying off pressing demands 
 and by the end of the month was again in distress. He aiM\'i^'<' to Mag- 
 wood & Patterson, and they agreed to indorse his note lor j>d,UUU, upon 
 his giving them the bond of himself and Mrs. Jolmston and a mortgage 
 of three negroes, as security. The bond was executed on the 3d Feb- 
 ruary, 1818.
 
 158 SOUTH CAROLINA EQUITY EEPORTS. [*229 
 
 The application of the money 
 
 by Mr. Johnson, 
 
 was as follows : 
 
 For carriage and horses, 
 
 
 • . . • 
 
 $726 00 
 
 Medical attendance on 
 
 plantation, 
 
 106 68 
 
 Educating children, . 
 
 
 
 77 00 
 
 Plantation expenses, . 
 
 
 
 8 19 
 
 House expenses, 
 
 
 
 159 62 
 
 Grocer's bill. 
 
 
 
 117 78 
 
 Upholsterer's do. 
 
 
 
 109 04 
 
 Druggist's bill. 
 
 
 
 46 43 
 
 Physician's do. 
 
 
 
 114 00 
 
 Ship chandler's do. 
 
 
 
 92 12 
 
 Negro cloth, 
 
 
 
 234 62 
 
 Overseer, 
 
 
 
 124 00 
 
 Tailor's bill, . 
 
 
 
 20 00 
 
 Tinman's do. 
 
 
 
 21 [yi 
 
 Jeweller's do. . 
 
 
 
 42 00 
 
 Grocer's do. . 
 
 
 
 350 00 
 
 Corn for plantation, . 
 
 
 
 188 10 
 
 Plantation account, . 
 
 
 
 42 75 
 
 Trust estate, 
 
 
 
 10 00 
 
 Medical account, 
 
 
 
 37 87 
 
 House, 
 
 
 
 10 87 
 
 Education, 
 
 
 
 77 00 
 
 Horses, 
 
 
 
 138 00 
 
 Plantation, 
 
 
 
 8 00 
 
 House, 
 
 
 
 159 62 
 
 The crop of 1818 failed. They made about half a cotten crop, which 
 was applied to the loan made in January ; the rest was not enough for 
 the subsistence of the negroes for three months. Magwood & Patterson 
 continued their assistance — they renewed the note, paying the in- 
 *2S0l ^^•'^^^* ^''^"^ ^''^^^ to time, and,furiiished the plantation and family 
 -^ with necessaries. On the 15th of September, 1819, Mr. Johnston 
 died, insolvent. Mrs. Johnston administered on his estate. At the 
 time of his death, he was indebted to Magwood «fc Patterson $1,124 84, 
 for such advances, besides the note which tliey afterwards paid off. Mrs. 
 Johnston sent the crop of 1819 to Magwood & Patterson, who retained 
 the same for their debt. Of the negroes mortgaged, one was subject to 
 a prior incumbrance, the remaining two were sold, and the proceeds 
 placed to the credit of the note. 
 
 The plaintiffs continued the factors of Mrs. Johnston, and advanced money 
 to her use from time to time, which she refused to pay, because they re- 
 tained the crop of 1819, or passed it to the account of A S. Johnston, 
 while she contended it sliould be passed to her account. 
 
 The bill was filed on the 4th December, 1823, against Mrs. Johnston 
 and the trustees, to charge the trust estate witli the plaintiff's demands ; 
 and afterwards Mrs Johnston and the trustees, by permission of the 
 Court of Chancery, sold all the settled estate. The interest of the money 
 arising from the sale gave the family an easy income. Mrs. Johnston 
 did not receive or spend the amount of her interest and annunity, which 
 continued in the hands of the trustees — she died on the 27th March,
 
 *230] CHARLESTON, APRIL, 1833. 159 
 
 1828 ; and the bill was revived against her administrator and the trustees. 
 The matters involved in the case were referred to the Commissioner, who 
 reports, among other things, that the whole of the trust property has been 
 sold, as before stated, except the Rosalind plantation, and a few old and 
 useless slaves ; and he recommends that the plaintiffs should be satisfied 
 their demands, first by a sale of the Rosalind estate, and the residue out 
 of the interest which has accrued on Gen. Can's bond, who was the pur- 
 chaser of the trust property. 
 
 The cause was heard at Charleston, January Term, 1829, and the fol- 
 lowing decree delivered by. 
 
 Harper, Chancellor. The case of Ewing v. Smith, 3 Eq. Rep. 147, 
 which is very much the present in many of its circumstances, has settled, 
 tha.t 0, feme covert cannot dispose of, or in any manner* charge her r:);nqi 
 separate estate — not even with the consent of her trustee. If L 
 issue or profits are to be paid to her separate use, she may_ do what she 
 pleases with them when she receives them, but cannot dispose of them by 
 anticipation. The Court, however, as has been decided in several cases, 
 will charge her separate estate, if the debt has been contracted for its 
 benefit. In a late case, that of Street t'. Theus, which I decided at Sumter, 
 I had occasioned to consider the doctrine of the liability of trust estates, 
 for debts contracted for their benefit; and to refer to some of the rules which 
 I supposed would govern the Court, in the application of that doctrine. In 
 that case, I observed, " that although it was perfectly well settled that a 
 trust estate was liable for debts contracted for its benefit, it has not been 
 settled that one trust estate is liable for the debts of another ; or that the 
 remainder-man is to pay the debts which were contracted for the exclu- 
 sive benefit of the tenant for life." The word ' estate' has sometimes 
 been used ambiguously. There may be various estates in the same pro- 
 perty, and one of these is no more liable for the debts of another, than if 
 they were estates of different property. True, where property is conveyed 
 in trust, and particular estates are created, there may be debts chargeable 
 on the whole estate — the particular estates as well as the remainder, and 
 to which all shall contribute rateably. As where, at the creation of 
 the trust, the estate is charged with a debt which falls due during the 
 contii)uance of a particular estate ; or perhaps, during the continuance of 
 a particular estate a debt may be created which shall properly be charge- 
 able on the whole, being contracted for the benefit of the whole — such 
 may be debts contracted for repairs and improvements. On the other 
 hand, it cannot be doubted there may be debts of the particular estate, 
 for which subsequent estates, or the remainder, will not be liable — such 
 as the well known instance of interest accruing during the continuance of 
 a life estate, which the tenant for life is bound to keep down._ The accru- 
 ing interest is continually due, and is a charge on the particular estate. 
 So in the case of a trust estate, all the charges of management* p232 
 are the debts of the particular estate ; taxes, current and necessary 
 repairs, the support of slaves, if they form part of the estate ; so all debts, 
 chargeable on the estate, which were contracted for the individual benefit 
 of the tenant for life In the case of a legal estate no one would think of the 
 remainder being liable for the debts of the tenant for life. These must 
 be paid, not out of the corpus of the property, but out of the profits ac-
 
 160 SOUTH CAROLINA EQUITY REPORTS. [*232 
 
 cruing during the continuance of the estate of life. The particular estate 
 is liable to be sold, not any part of the capital. The equity on which a 
 creditor comes into this Court to render a trust estate liable to the payment 
 of his debt, in this, that he has advanced his money, or given credit to 
 effect the objects of the trust, and having accomplished the objects of the 
 trust at his own expense, he has a right to be put in the place of the 
 cestui que trust, or to be reimbursed out of the trust fund. If there were 
 a trust to keep a hos})ital in repair, he who has made the repairs at his 
 own expense, might have his equity to be reimbursed out of the trust fund. 
 So, if the trusts were to pay rents and profits for the separate maintenance 
 of a feme covert, he who had advanced his money for her separate main- 
 tenance, might have such an equity. But every estate must bear its own 
 burthen, or instead of effecting the objects of the trust, they will be de- 
 feated. The case of Street v. Theus, to which I have alluded, was one 
 in which the property was settled to the joint use of the husband and 
 wife during coverture — on the death of the husband, to the wife for life, 
 remainder oh her death to the children of the marriage. The bill was 
 filed after tlie death of the husband, to ol)tain payment out of the trusts 
 estate, of an account for articles furnished, and advances made to the 
 husband for the support of himself and family. Here the objects of the 
 trust, were that during the continuance of the joint estate, the issues and 
 profits should go to the joint issue. The advances were made by the 
 creditor to the joint use, and I thought he could look only to the joint 
 estate for satisfaction — that is to say, to the rents and profits which ac- 
 crued during the coverture. The further objects were to secure the estate 
 ^QoQ-i to the individual use *of the wife after the husband's death, and to 
 ' -^ her children after her death. 
 
 If by making advances to the husband for the use of himself and family, 
 the wife's separate life estate or the capital of the property might be 
 rendered liable, it is i)lain that it would be in the power of the husband 
 and a creditor to defeat the ulterior objects of the trust altogether. It 
 would be vain to say that the wife shall not anticipate the income of her 
 separate property, if the husband may by exceeding his income thus 
 anticipate it, even before it vests in possession. It is to be observed 
 that in such cases of marriage settlement, the husband, the wife and the 
 children, are purchasers of their several estates for valuable consideration. 
 
 I do not think the cases decided in this State inconsistent with the 
 view I have taken. In Cater v. Eveleigh, 4 Eq. Rep., 19, a cotton saw 
 gin was bought for the use of the wife's separate estate — it is not stated 
 whether she was tenant for life, or in fee. If only tenant for life, the 
 saw gin may have been considei'ed a permanent improvement, properly 
 chargeable on the whole estate. — The order is general for payment out 
 of the estate. I suppose if it were an estate for life, the effect of the 
 order was to make it payable out of the profits of the life estate. In 
 James v. Mayrant, 4 Eq. Rep. 591, the order was express, to pay out of 
 the accruing profits during the continuance of the life estate. In Mont- 
 gomery & Eveleigh, 1 M'C. Ch. 257, there was an estate for life, and 
 the debt was contracted for the support of the slaves, constituting 
 according to ray view only a charge on the life estate. The order is 
 general to pay out of the life estate. The point does not seem to have 
 been brought before the Court, of a distinction between the liability of
 
 *233] CHARLESTON, APRIL, 1833. 161 
 
 the particular estate and the remainder. But I suppose the effect of the 
 order was to make the debt payable out the rents and profits of the life 
 estate. 
 
 The bill in the present case is filed, as it is said, to obtain payment out 
 of the trust estate, on the ground that the debt was contracted for its 
 benefit. But it is to be observed in the first place, that here are two 
 general trust estates, though both are created by the same settlement and 
 vested in the same trustees, out of each of which various particular 
 estates have been carved for different purposes, and subject *to r^oqi 
 distinct liabilities. It is true, that as I understand the report of L •" 
 the Commissioner, the whole of both estates has been sold (except one 
 plantation) and the proceeds vested in a single fund. But the Court 
 must dispose of the proceeds of each according to the trusts of the original 
 settlement. There is first, the property which was Mrs. Johnston's 
 before her marriage, her share of her father's estate. In this the settle- 
 ment gives her a life estate, (to her separate use during coverture) with 
 remainder to her children. Is this property or her life estate in it, which 
 still subsists, liable to the complainant's demand, or any, and which of 
 them ? The comphxinants must claim on the ground that their debt was 
 contracted for the purpose of effecting the objects of the trust. What 
 were the objects of tlie trust ? That she should receive the issues and 
 profits to her separate use during the coverture — to her own use for life 
 after the determination of the coverture by the death of the husband, and 
 that the property should go to her children at her death. Have the 
 complainants advanced their money for these purposes. It is on this 
 part of the case that I feel the principal and only difficulty. The com- 
 plainants' first demand is for the money raised on the note indorsed by 
 them, which they charge was expended by Mr. Johnston for the con- 
 venience and in the support and education of his family. This is said to 
 have been the expending of money for the benefit of the trust estate. To 
 expend money for the benefit of a trust estate, would seem to mean, 
 either adding value to the estate, or the defraying of charges to which 
 the trust estate would be liable. But was the wife's i^^eparate trust estate 
 liable for the expenses of herself and family ? In general such an estate 
 is not. A feme covert who has an estate to her own separate use, 
 may do what she pleases with the income of it. She is not bound to 
 support herself with it, still less her children. — She may suffer it to accu- 
 mulate, and still demand a support from her husband. — A husband if he 
 be of ability, is bound to support his wife and family, though they may 
 have property of their own. But there may be cases where the husband is 
 not of ability. He may be embarrassed, or without property, and the wife 
 may be compelled to support herself out of her separate *estate. r*235 
 And she might be subjected to the greatest distress, if she could 
 not obtain the means of support on the credit of her separate estate. 
 The Court has ordered children to be maintained out of their own 
 property, when the father was not able to support them. The idea seems 
 to be, that if articles are furnished, or money advanced to the husband, 
 and employed by him in the support of his family, and he afterwards 
 turns out insolvent, it is sufficient evidence that he was not of al)ility to 
 support them, and the creditors have an equity to charge their account 
 on the wife's or children's estate. It seems fair, that they who have re- 
 
 VOL. I.— 11
 
 162 SOUTH CAROLINA EQUITY REPORTS. [*235 
 
 ceived the benefit of the creditor's advances, should satisfy him out of 
 their owu property. There seem to be several difficulties in the way of 
 establishing such a doctrine. The husband, the wife and the children, 
 have all received their share of the benefit from money laid out in family 
 expenses, and if they have distinct property, it should seem that they 
 ought to contribute in proportion to the benefit received. But there 
 would be great difficulty in apportioning the contribution among them. 
 The wife and children are not bound to support the husband and father, 
 though they may be obliged to support themselves. If all accounts 
 raised by the husband for the support of his family, are to be charged 
 on the separate property of the wife and children when he proves unable 
 to pay, it would always be in his power to squander his own property 
 and contrive to charge his family expenses on the estates of the wife and 
 children, thus defeating the object for which the trust was created. The 
 husband ought to support his family in a manner suited to his income. 
 If the wife's separate fortune will afi'ord a more expensive way of living, 
 and she is minded so to apply it, there is nothing to forbid her doing 
 so. But he should not incur expenses in reference to what her fortune 
 will afford. He will, however, be continually tempted to do so, if we 
 allow accounts raised by him to be charged on the wife's separate estate. 
 But the principal difficulty in the way of the doctrine is, that there is not, 
 so far as I can discover, any law or authority for it. There would be no 
 difficulty in such a case in England. If the credit were given to the 
 ^gop-n husband he alone would be answerable, *though he might have 
 -' applied the money to the support of his family. If the wife should 
 afterwards think fit to charge the debt on her separate estate, she might 
 do so. So the wife there may raise any amount, or contract any debt on 
 the credit of her separate estate, and the estate Avill .be liable for them. 
 
 How far have our Courts departed from the English doctrines ? Thus 
 far, that the wife should not by her own act merely, charge her separate 
 estate. The Court will look into the necessity and i)ropriety of the 
 charge. If she is under the necessity of supporting herself and family 
 on the credit of the separate estate, she may do so, as in England. But 
 the Court, before making her estate liable, will look into the circum- 
 stances of the husband, and be satisfied that the necessity existed, and 
 that the goods furnished or money advanced, was proper in her circum- 
 stances. But still it must appear that the credit was given to the wife, 
 and not to the husband. 
 
 The decisions of our Courts which take away from the wife the power 
 of charging her estate by her own mere act, do not give the husband the 
 power of charging it, even for things the most necessary and proper. 
 The wife must be trusted, and on the faith of her own separate property. 
 In case of a trust to pay rents and profits to the separate use of a feme 
 covert, they must be paid to her own order, or into her own hand. 
 So, with respect to such an account, I should say, the goods must be 
 furnished, or the money paid, to her own order or into her own hand. 
 The husband may perhaps be her agent in raising the account, (though 
 I should doubt the propriety of his acting as such) but then it should 
 distinctly appear that he acted in the character of agent. In short, 
 the dealings should appear to have been bona fide with the wife, 
 and not with the husband. I can perceive nothing in the case, but
 
 *236] CHARLESTON, APRIL, 1833. 163 
 
 that the credit was given to the husband, though it was attempted after- 
 wards to obtain the additional security of the wife's separate estate. 
 The money, so far as appears, was not paid to him for the particular 
 purpose of supporting his family, but for any purpose to which he might 
 think proper *to apply it. The proof is very imperfect of his r^c)o>^ 
 having applied it to the support of his family — at most it applies L "' 
 to but a part of the money. The carriage and horses form the most con- 
 siderable item. On this I may observe, that if the husband thought 
 proper to buy a carriage and horses for the convenience of himself and 
 family, I do not perceive on what principle the wife's separate estate can 
 be charged with them. If, by her direction, he bought them for her 
 separate use, and they are now her individual property, perhaps she may 
 be chargeable. If he purchased for himself, they remained his property, 
 and she is chargeable with them as administratrix. The parties may 
 have this point referred if they think proper. I cannot think either the 
 wife's life estate in this property, or the children's remainder, liable to 
 satisfy the complainants for the amount paid by them on the indorsement. 
 
 The complainants' next demand is on an account raised against Mr. 
 Johnston, in his lifetime, principally for corn and other plantation sup- 
 plies ; cash advanced for payment of taxes ; cash on account, for 
 renewal of note, &c. So far as the supplies were for the use of Mrs. 
 Johnston's separate estate, corn for the support of her separate slaves, 
 or taxes paid for her separate property, I think her life estate, (not the 
 children's remainder) is liable to satisfy the account. The report does 
 not distinguish what was furnished for the separate estate, and what for 
 the husband's. — This may be a subject of further reference. 
 
 The complainant's next demand is for an account against Mrs. John- 
 ston, since her husband's death, to the amount of $2,139 12, on which is 
 credited $1,191, for produce sold chiefly in 1821. Mrs. Johnston admits 
 this account in her answer, to the amount of $1,364 64, but states that 
 this only exceeded the amount of the crop of 1819, sent by her to the 
 complainants, by about $163; and that she afterwards sent them pro- 
 duce more than enough to pay the balance. The report is not very 
 specific as to the amount of this account proved, or the payment on it. 
 I suppose the question of its being paid depends on that of the com- 
 plainants' right to apply the proceeds of the crop of 1819 to the account 
 *of A. S. Johnston. It is clear that they had no such right. If r:!:233 
 the crop was entirely the property of the estate of A. &. John- '- '^^ ^ 
 ston, they had no right to retain it as preferred creditors. The adminis- 
 tratrix was entitled to it, that she might distribute it in a course of 
 administration. — She may be liable for the amount, as administratrix, to 
 the creditors of her husband, but as between her and the complainants, 
 her factors, it was a mere personal transaction. As to the claim set up 
 by Mrs. Johnston, to a portion of this crop, it is perhaps not necessary 
 now to decide. — That question will arise when she is called to account 
 for her administration. I am inclined to think, that if she and her 
 trustee permitted her husband to use the services of the slaves on his own 
 plantation, (I understand the crops were made on the Rosalind planta- 
 tion) without any agreement as to apportioning the crop, that the crop 
 was his, and that she cannot, at all events, be considered as any thmg 
 more than a creditor, for the hire of the slaves.— On this pomt, however,
 
 164 SOUTH CAROLINA EQUITY REPORTS. [*238 
 
 I do not conclncle any thing. In the account against Mrs. Johnston, 
 there are charges for money, said to be advanced specifically for the 
 maintenance and education of the children, and so applied by her. If 
 that account is paid, it is not perhaps necessary to notice this charge 
 particularly. I may observe, however, that Mrs. Johnston is personally 
 liable, and all her property is liable for any debt contracted by her, or 
 money advanced to her, since her husband's death. If money was 
 advanced to her for the support and education of her children, and 
 properly applied, and the creditor should be unable to obtain payment 
 of her, there is an estate expressly charged with the maintenance and 
 education of the children, from which the creditor may be reimbursed. 
 I could not, however, it seems to me, make the order in this case, to 
 which the children are not parties I think the creditor might apply by 
 petition. 
 
 As to the property which was A. S Johnston's before his marriage, 
 he had a life estate in that which was subject to all his debts. His life 
 estate has now passed way, and the remainder has vested in the children, 
 *9Qql subject to a life annuity to their mother. They are *all pur- 
 ^ -' chasers for valuable consideration. From the view which I have 
 taken, it will appear, that I do not think this remainder chargeable with 
 the personal debts of A. S. Johnston, or those contracted by him for the 
 support of his family, or those contracted for the benefit and support of 
 his life estate — in short, for any of the complainants' demands. 
 
 It is ordered and decreed, that the case be again referred to the Com- 
 missioner, to report on the matters specified in the foregoing opinion, as 
 matters of reference. And that as to the residue of the complainants' 
 charges, the bill be dismissed. 
 
 Mr. Gray, (the Commissioner,) to whom the cause was referred, by his 
 report in January, 1833, found that the bond and note were given as 
 herein before mentioned ; and the money expended by Mr. Johnston, as 
 already mentioned, and disallowed the complainants' claim to be reim- 
 bursed either for the amount paid on Mr. Johnston's note, or the sums 
 advanced by them to Mr. Johnston for the maintenance of the plantation 
 and family. The report finds further the assets of Mrs. Johnston in the 
 hands of the trustee, amounting to $3,965 55. 
 
 At January Term, 1833, the cause came before his Honor, Chancellor 
 Johnston, upon the report exceptions and equity reserved, who ruled, 
 that the decree precluded every question, except as to the fact whether 
 the carriage was bought for Mrs. Johnston, and the supplies furnished on 
 her credit; and overruled the exceptions, without making any further 
 decree. 
 
 The plaintiffs appeal, and move to reverse the same, on the following 
 grounds : 
 
 1. That the evidence taken in the case places it beyond doubt, that 
 Magwood & Patterson indorsed the note of A. S. Johnston, on the 
 credit of him and Mrs. Johnston, jointly ; that the money was applied to 
 their joint use, and that Mrs. Johnston was consenting to the application 
 of the money, as well as to the loan. And therefore, that this case comes 
 within the principal of a loan, obtained by a married woman, upon the 
 credit of her separate estate, and applied by her to her own use.
 
 *240] CHARLESTON, APRIL, 1833. 165 
 
 *2. That the loan was necessary and proper, in the circum- r- ,..-, 
 stances in which Mr. Johnston was placed ; that the plaintiffs are ^ ~ 
 humane and meritorious creditors of the wife as well as of the husband, 
 and are entitled to the benefit of Mrs. Johnston's engagement to them, 
 because that engagement was such as, in conscience and in equity, should 
 be complied with. 
 
 3. That as Mr. and Mrs. Johnston were equally interested in the loan, 
 their joint liability was a fair and equal arrangement of which the plain- 
 tiffs should have the benefit ; but, at all events, if Mrs. Johnston's estate 
 be not liable for the whole, it should be liable for a proportionable 
 part. 
 
 4. That the advances made by Magwood & Patterson, after February, 
 1818, should be borne by Mrs. Johnston's estate in like manner, as having 
 been made upon the same understanding, that they were for the joint 
 benefit of the husband and wife, and that they were jointly liable. 
 
 All which positions, as the plaintiffs contend, are consistent with Chan- 
 cellor Harper's decree, and with the law of this Court. But if the 
 Court be of opinion that the said decree is opposed to the relief which 
 the plaintiffs seek, they appeal from so much of the said decree. 
 
 Pettigru, for the appellants, cited Jacques u. The Methodist Church, 
 1 John. Ch. Rep. 150; 17 John. Rep. 458; Ewing v. Smith, 3 Eq. 
 Rep. 417. 
 
 Earle, J. The Chancellor in his Circuit decree has decided the gen- 
 eral principles of this case, and had settled the most important questions 
 which arose in the progress of it. In order to charge the separate estate 
 of the wife, he had said, that the goods must be furnished, or the money 
 paid, to her own order or into her own hands. "And although the hus- 
 band might perhaps act as her agent, that it should distinctly appear that 
 he acted in the character of agent ; and that the dealings should appear 
 to have been bona fide with the wife, and not with the husband." 
 
 Under this general principle, the Chancellor expressly decreed,* r*24l 
 that neither the life estate of the wife, nor the remainder of the '- 
 children, was liable to refund the amount which the complainants had 
 paid on their indorsement, and directed it to be referred to the Commis- 
 sioner to inquire whether the carriage and horses were bought by the 
 direction of the wife for her separate use, and were retained by her as 
 her individual property. The Commissioner reported that they were not 
 so purchased, and that they were sold after Mr. Johnston's deatli, as part 
 of his estate. He reports expressly that the credit, in relation to the 
 money raised on the note indorsed, was given to Mr. Johnston himself 
 In relation to the advances, made by complainants io Mr. Johnston of 
 money and supplies, provisions, &c., for the plantation, it was further 
 referred on this subject, to enquire and report, whether the supplies were 
 for the use of Mrs. Johnston's separate estate ; the corn for the support 
 of her separate slaves, or taxes paid for her separate property. _ ihe 
 Commissioner reports, that no evidence has been furnished by which it 
 was practicable to distinguish what was on account of the one estate, and 
 what of the other. 
 
 Another question raised, related to the supplies furnished Mrs. John-
 
 166 SOUTH CAROLINA EQUITY REPORTS. [*241 
 
 ston by the complainants after the death of her husband, in September, 
 1819, on which account they claimed a large balance. This question 
 depended on the right of the complainants to apply the proceeds of the 
 crop of 1819, to the extinguishment of their demands against Mr. John- 
 ston. From the report of the Commissioner, it appears that they retained 
 the whole of that crop, amounting to $1,162 90, which they had no right 
 to do, according to the decree. The Commissioner therefore reports that 
 sura against them in favor of the estate. 
 
 On exceptions to the report it w\as confirmed, and the Chancellor was 
 of opinion that by the previous decree the whole bill was dismissed, ex- 
 cept the subject specially referred and reported on. 
 
 This Court is now of the same opinion, and the order of confirmation 
 
 *0/i9l ^^ "°^ affirmed. The complainants have *appealed from the 
 
 "^ "-• original decree, and this Court concurs fully in the views which 
 
 the Chancellor has taken, in that decree ; and the same is hereby also 
 
 afifirmed, for the reasons which he has given. 
 
 Johnson and O'^Neall, Js., concurred. 
 
 The Executors of James S. Hopkins vs. Mary Mazyck, and others. 
 
 P. R. M. a young man of intemperate habits, was prevailed on to execute a deed of 
 his pi'operty to bis mother and l)ruther and sisters, reserving a life estate to him- 
 self, with the understanding on his part, and promises on their's, that the object 
 was to protect his property, and not to deprive him of the right to control and 
 dispose of it by will ; but the deed contained no power of revocation, nor was 
 there any undue influence exercised ; P. K. M. afterwards made a will by which 
 he disposed of his property, and died : Held, that the deed was valid and irrevo- 
 cable.[*242] 
 
 The decision in Lawrence v. Beaubien, considered and adhered to. Distinction 
 taken between ignorance and mistake of the law ; the first is not susceptible 
 of proof, and cannot therefore be relieved ; but mistake may be proved, and when 
 proven relief will be afforded. [*250] 
 
 The bill states that Paul Ravenal Mazyck, being possessed of consid- 
 erable property, on the 4th of October, 1816, executed a deed to certain 
 trustees, whereby, for certain good causes and considerations, he conveyed 
 his whole estate in trust for his own use, during life, and at his death to 
 his mother, brothers and sisters, to be equally divided between them. 
 That on the 5th November, 1816, the said Paul R Mazyck, by his last 
 will and testament, devised and bequeathed his whole estate to his sister 
 Jane, (now Mrs. Elfe,) subject to a legacy of $200, to his brother Benja- 
 min ; and requests his mother and brothers and sisters to take nothing 
 under the deed, which he declares was executed at their instance, and 
 intended solely for his own protection ; and should they claim under it, he 
 enjoins it on his executor to institute proceedings to set it aside ; and 
 shortly afterwards died. The defendant, George Elfe, has lately proved 
 the will, and undertaken the execution thereof ; and claims to hold the 
 property disposed of under it. That, Margaret Mazyck, (one of the sis- 
 ters of Paul R. Mazyck,) in contemplation of marriage with James S.
 
 ^242] 
 
 CHARLESTON, APRIL, 1833. 167 
 
 Hopkins, the plaintiff's intestate, by marriage settlement of the 24th Feb- 
 ruary, 182t, conveyed her whole estate, as set forth in a schedule annexed, 
 to trustees, in trust, among other things, *that if the said James 
 S. Hopkins survived her, and there should be no child of the L ^^^ 
 marriage, the said estate should become the absolute property of her said 
 husband. The schedule contained the following words, " under the trust 
 deed of Paul R. Mazyck, one-sixth of all his estate, real and personal, 
 conveyed in trust to his mother, brothers and sisters, should the deed be 
 adjudged irrevocable." The marriage took effect — Mrs. Hopkins died, 
 never having had issue, her husband surviving became, therefore, entitled 
 to her estate, under the marriage settlement. 
 
 The plaintiffs, on behalf of their testator, claim the benefit of the deed 
 executed by Paul R. Mazyck, and aver that although it was voluntary, 
 he executed it in the exercise of his best judgment, and when he was fully 
 competent to do so, in order to protect himself from want, and to secure 
 the property after his death to his relations. 
 
 The bill prays for partition of the property, and an account of the 
 rents and profits. 
 
 The only question at this time made in the case, was whether the deed 
 cf Paul R. Mazyck was absolute and irrevocable, or was executed under 
 such persuasion and undue influence, and mistake of the law, as to render 
 it void. 
 
 The answer of Mrs. Mary Mazyck, (the mother,) among other things, 
 says, that the said deed was made without any consideration whatever ; 
 but she cannot say that it was not made by over-persuasion, and the exer- 
 cise of the influence of his family, and of at least one of his best friends ; 
 for such was the fact, though she denies that it was an undue influence in 
 any improper sense of that word. The only object of herself and that 
 friend, (Dr. Gough, now deceased,) was to save him from squandering 
 his property, and to prevent its falling into the hands of unprincipled 
 creditors who might, and as experience had shown would, draw him in by 
 his dissipated habits, to waste it all. The plan originated with herself — 
 to secure the property to the family of the said Paul, viz., his mother, 
 sister and brothers, was the principal part of the design. The said Paul, 
 being then a resident at Byrd's Hotel, was sent for to her house, and was 
 brought in a chair with considerable difficulty, and after much persuasion ; 
 that after he came, the *object of his being sent for was made rt.244 
 known to him, and it was then distinctly declared to him that the •- 
 sole motive was to save him and his property from the arts of unjust and 
 unprincipled creditors ; that she employed all the influence she had as a 
 mother to induce him to sign the deed ; that he signed it with manifest 
 reluctance, but not without repeated and solemn promises from herself 
 and others present that the deed should never at all interfere with his 
 control of the property, nor with his disposition of the same by will, in 
 any way that he might please, and she never did consider herself entitled 
 at all to claim any benefit under the said deed, against any will he might 
 have. That after the execution of the deed, he lived continually till bis 
 death at her plantation, except in summer, when he lived at her house in 
 town, and became a much less dissipated, though not entirely a sober 
 man. She was not aware of the existence, and still less of the contents, 
 of the will of Paul Raveual Mazyck, until after his death.
 
 168 SOUTH CAROLINA EQUITY REPORTS. [*244 
 
 Solomon Legare, the surviving trustee under the deed, by his answers, 
 says, that he had been for several years the intimate ftnend of the family, 
 and was often consulted by the said Mary Mazyek respecting the affairs 
 of herself and her children ; that he well knew the said Paul R. Mazyek 
 from his childhood; that as he grew up he acquired habits of dissipation 
 and intemperance, which were the occasion of much concern and anxiety 
 to his mother, and his family and friends generally. But however incon- 
 siderate the said Paul R. Mazyek may have been at periods of indulgence 
 in liquor, yet in the intervals when he abstained from it, his mind was 
 clear and good, and he was as competent to the judicious management of 
 his affairs as men in general. He further says, that some short time pre- 
 vious to the execution of the deed of trust, above spoken of, he was sent 
 for to see the said Paul R. Mazyek, who was suffering under a severe ill- 
 ness produced by his habits of intemperance. That on his becoming 
 convalescent. Dr. Gough, the attending physician, a disinterested friend 
 of the family, advised the said Paul R. Mazyek to make some conveyance 
 of his property, by which it might be secured from any future acts of 
 improvidence he might be led into. That the said Paul R. Mazyek 
 *9A^1 ^PPi'O'^sd of such *arrangement, and Dr. Gough, by his request, 
 -■ and in compliance with the general opinion and wishes of his 
 mother and family, actually drew a paper of similar import with the said 
 deed, which was signed by the said Paul Ravenal Mazyek; but that he, 
 the said Solomon Legare, on examining the paper so prepared by Dr. 
 Gough, thought it informal and insufficient for the purposes which it pro- 
 posed, and advised the said P. R. M. to employ a professional gentleman 
 to draw such an instrument of writing as would carry his objects fully 
 into effect. And the said Solomon Legare saith that it was at the sug- 
 gestion, and under the advice so given by him, that the deed aforesaid 
 was drawn and executed. That he was present and saw the deed execu- 
 ted, as well by the said P. R. M., as by Mr. Gadsden, (the other trustee, 
 since deceased,) and at the same time executed it himself; that he well 
 remembered that it was said at the time, and understood among the 
 family, that if the said P. R. M. reformed and became a temperate man, 
 none of them could claim under the deed ; but he did not understand that 
 this was a condition of the deed, or that it was said to persuade P. R. M. 
 to execute it : for, in fact, the said Solomon Legare is not aware of any 
 reluctance on the part of the said P. R. M. to execute the deed, and the 
 whole understanding appeared to be, that P. R. M. was in the mind to 
 make such a deed, and was more willing to trust his mother, brother and 
 sisters, than to trust himself. And he further says, that Mrs. Mazyek, 
 the mother of the said P. R. M., and the family generally, approved the 
 execution of the deed in question. He felt assured they did so from con- 
 siderations of regard towards the said P. R. M., aware of his proneness 
 to drink, and his consequent liability to squander his property; and not 
 with any view to benefit themselves ; and he says, as far as the circum- 
 stances under which the deed was made, are known to him, he can confi- 
 dently state that no undue influence or persuasion whatever was made use 
 of, by any one, to secure its execution ; but that it was the voluntary, 
 free and deliberate act of the said P. R. M., at a period when he had for 
 *'>4fi1 ^*^''^® weeks left off drinking, *and when his mind was as strong 
 -J and unclouded as it ever had been. He further says, that he was
 
 *'246] CHARLESTON, APRIL, 1833. 169 
 
 in tlie habit of frequently visiting P. E,. M. after the execution of the 
 said deed, up to the time of his death, and that he never heard him ex- 
 press the slightest regret at having made it, or any wish to revoke it ; nor 
 did he ever have any intimation of the kind from the family, until very 
 recently ; but on the contrary, always regarded the said deed of full force, 
 and unrevoked. That he, the said Solomon, never knew nor heard of the 
 will which the said P. R. M. afterwards executed, till it was deposited in 
 the Ordinary's office, by a gentleman, now deceased, who, this defendant 
 believes, had possession of it without even the knowledge of its existence 
 by the family. That not many weeks after the executing of the deed, 
 and, as well as he can recollect, about the period of the date of the said 
 will, the said P. R. M. resumed his habits of intemperance, which became 
 more inveterate, and eventually produced his death. 
 
 The answer of George Elfe and Jane his wife, sets forth, that the said 
 deed was voluntary, so far as regards a consideration for the same ; and 
 denies that it was irrevocable, but, on the contrary avers, that it was 
 revocable, and was so understood and intended to be, by all the parties 
 concerned therein. 
 
 Jane Elfe, for herself, separately answering to the actual transactions 
 preparatory to, accompanying, and subsequent to the execution of the 
 said deed of the 4th. October, 1816, says : that she well remembers how 
 anxious and distressed her mother was, at the habits and conduct of the 
 said Paul, and at the prospect of the whole of his property being squan- 
 dered by him, as the Queen-street lot had been. That under these cir- 
 cumstances, the said Paul, being a resident and constant boarder and 
 lodger at Byrd's Hotel, was sent for, to his said mother's house. That 
 he was accordingly brought, after much persuasion and difficulty. That 
 the deed had been previously prepared ; nor did he know anything about 
 it until he came to his mother's. That he was then informed that he had 
 been sent for in order to execute that instrument ; on which he became 
 evidently* distressed and embarrassed, and walked about the r^2i^ 
 room, much disturbed in mind. That he expressed great unwil- ^ 
 lingness to sign the paper, as not understanding its contents — and he 
 undertook to read the paper, wiien his mother and the said Jane Elfe, 
 being both of them present, expressly assured him that the only object of 
 the deed was to save the projierty for his own use and benefit, from the 
 injustice and rapacity of fraudulent creditors taking advantage of him ;^ 
 and that it was not, in any manner, intended to deprive him of the use ot 
 the property, or of a control over it. That under these assurances he 
 became calmer, and executed the deed — and having done so, asked em- 
 phatically whether he would be debarred of the privilege of making his 
 will, and disposing of his property thereby. Whereupon he was assured 
 by his mother and the said Jane Elfe, that he would not ; that they had 
 already told him so, and that they never would claim anything under the 
 deed. That these declarations satisfied him, and he left the house. 
 After the execution of the deed he lived entirely at the residence of his 
 mother on Goose Creek, became a reformed man, lived such the rest of 
 his life, and died at his mother's, on Goose Creek, between three and four 
 years afterwards. Said Jane, and she believed, the whole family likewise, 
 were totally ignorant of the kind intentions of her brother towards her, 
 and of the preference he had given her as the sole object of his bounty,
 
 no SOUTH CAROLINA EQUITY REPORTS. [*247 
 
 for she most certainly, and slie believes no one else of the family sus- 
 pected, ranch less knew, of the existence of any will of the said Paul, and 
 still less had they any idea of its contents. These defendants, therefore, 
 from the foregoing facts, within the knowledge of one of them, the said 
 Jane, expressly denying that the said Paul was not induced by over- 
 persuasion and undue influence to execute the said deed, but that, on the 
 contrary, he was induced to do so by the solicitations and influences 
 already set forth at large ; they accordingly insist on said will, by way of 
 plea, in their answer, in bar to the account sought for by the plaintiff; 
 but should the same be overruled, they will be ready to account. 
 *9isT "^^'^ answers of the trustees under the marriage settlement* is 
 -^ immaterial, and the answers of the other defendants, the sisters of 
 Paul R Mazyck, and their husbands, insist on the validity of the deed — 
 they were all under age at the time of its execution. Benjamin and 
 Alexander, the brothers of Paul., are dead, and Mrs. Mazyck adminis- 
 tered on the estate of the former. 
 
 In addition to the above, it was proved that the marriage settlement 
 of Mrs. Hopkins was drawn by Arthur O'Harra, the former husband of 
 Mrs. Elfe. 
 
 The examination of Mrs. Mary Mazyck was offered, on behalf of Mr. 
 and Mrs. Elfe, but objected to, on the ground that she was interested, and 
 could not impeach the deed to which she was a party. The objections 
 were overruled. 
 
 The following extract from the schedule annexed to the marriage 
 settlement of Mrs. O'Harra, now Mrs. Elfe, was proved. "Under the 
 will of Paul R. Mazyck, all his estate, real and personal, (subject to a 
 legacy of $200 to his brother Benjamin) devised and bequeathed by 
 Paul to his sister Mary Jane Mazyck, should the same be adjudged a 
 legal and valid will. If not, one-sixth of his real and personal, conveyed 
 in trust for his mother, brother and sisters, should the deed be adjudged 
 irrevocable." Mrs. Mazyck testified that she did not know whether 
 Mrs. Hopkins was present when the deed was executed ; but she after- 
 wards told her of what had passed, and more than once expressed her 
 agreement to it. Paul, in summer, lived in town with the family. He 
 often said, " remember, mother, I depend on you, that it is mine and I 
 will do as I please with it;" and she thinks Mrs. H. must have been 
 present on some of these occasions. It was no secret in the family — all 
 looked upon it as his, and so did Mrs. H. After Mrs. Desil grew up, 
 she was acquainted with the particulars of the execution of the deed, and 
 never objected ; and witness had no reason to believe she was not present 
 at the conversations of Paul, above mentioned. 
 
 On the above state of facts. Chancellor Johnston, at Charleston, 
 January term, 1833, decided that the deed of P. R. M. of 4th October, 
 1816, was irrevocable, as it declared the trust property was to be sul)ject 
 *s>4Q"i ^0 none other, and it ^reserved no power of revocation — without 
 ■J deciding whether parol evidence was admissible to establish stipu- 
 lations not contained in the deed ; the Chancellor held, that the evidence 
 contained none such. That no such stipulation was made by the trus- 
 tees ; and all of the cestui que trusts, except Mrs. Mazyck, being under 
 age, there was not sufficient proof of ratification by them after they had 
 attained twenty-one. That Mr. Hopkins was a purchaser for valuable
 
 *249] CHARLESTON, APRIL, 1833. 171 
 
 consideration, to wit, marriage ; and the notice to him in the schedule 
 was not sufficient. That the executor, devisee and legatee of Paul, are 
 bound, because he was, and they cannot, because he could not, aver any 
 other trust not in the deed ; and his will does not pretend any stipulation, 
 but merely insists on the motives. The Chancellor also decided, that the 
 deed had not been executed under any mistake of law, as contended by 
 Mr. and Mrs. Elfe ; for that P. R. M. had good ordinary understanding, 
 and his will does not pretend to any mistake, nor did he take that ground 
 in his lifetime; and he questioned the correctness of Lowndes v. Chisholra, 
 and Lawrence v. Beaubien, The decree therefore established the deed. 
 
 An appeal was taken upon the grounds following : 
 
 L That under language of the deed of P. R. M. stating it to have 
 been made "for divers good causes and considerations," and also for one 
 dollar, the evidence of his motives and expectations declared at the time, 
 was admissible. 
 
 2. That the evidence was not offered to alter the trusts in the deed, but 
 to establish a palpable mistake at the time of execution, as to the effect 
 of the deed in controlling the power of disposing of the property by 
 will — a power which the grantor meant to reserve, and believed he had 
 reserved. 
 
 3. That the assent of the trustees and of the minor cestui que trusts 
 was unnecessary, because the deed was plainly voluntary, and all the 
 grantees and cestui que tj^usts were volunteers ; and as the grantor was 
 led into a palpable mistake by the declarations of his mother, speaking 
 for all concerned, and as it w^ere, actually contracting with him *on r:j;9cn 
 behalf of all others, the silence of the trustees, and the minority of '- "^ 
 the other cestui que trusts, are immaterial. 
 
 4. That the mistake is sufficiently made out by the proofs in the cause, 
 to entitle Mr. and Mrs. Elfe to relief against the deed. That the mistake 
 was such a mistake in law as is relievable in a Court of Chancery ; and 
 that Lowndes and Chisholra, and Laurens and Beaubien, are unquestion- 
 able law, and cover the whole ground under controversy here. 
 
 5. That although Mr. Hopkins was a purchaser for valuable con- 
 sideration, yet he had notice by the very terms of the schedule. That 
 the will of P. R. M. of record in the proper office, was notice to him — 
 and, had he inquired of Mrs. Mazyck, or of Mr. O'Harra who drew his 
 settlement, he would have found what was meant by the clause ; and as 
 he chose to marry with notice of the doubts unexplained, he must take 
 the consequence thereof, 
 
 6. That the Chancellor has erred in saying that the executor, devisee 
 and legatee of P. R. M. cannot set aside the deed, because he, himself, 
 if alive, could not do it — whereas, it is insisted, that if P. R. M, were 
 himself alive, he could, on the existing state of facts, be relieved, on a bill 
 filed by himself, to establish the mistake in law, just as Beaubien and 
 Chisholm were relieved 
 
 1. That the deed, therefore, must be declared null and void, andthe 
 will established ; and the decree for account _aud settlement modified 
 accordingly, 
 
 Grimke and Dunkin, for the appellant. 
 
 King and Pettigru, contra.
 
 172 SOUTH CAROLINA EQUITY REPORTS. [*250 
 
 Johnson, J. We concur with the Chaucellor, that the trust deed 
 executed by Paul Ravenal Mazyck is good and must stand, and therefore 
 that the decree of the Circuit Court should be affirmed ; and that would 
 be sufficient for the case itself, but the observations of the Chancellor are 
 calculated to shake the rule in Lawrence v. Beaubien, 2 Bail. 623, and 
 Lowndes v. Chisholra, 2 M'C. Ch. 455, and the Court have thought it 
 necessary to use the occasion to express their adherence to it. 
 
 Lawrence v. Beaubien was decided upon much consideration, and 
 the more I have reflected upon it since, the more I am confirmed in its 
 ^np.^ 1 correctness ; and I feel persuaded that *all doubts about it pro- 
 -' ceeded from misapprehension of the principle on which it is 
 founded. There is, as I understand it, a very obvious distinction be- 
 tween ignorance and mistake of law. Ignorance cannot be proved — 
 (who can enter into the heart of man, and ascertain how much knowledge 
 dwells there ?) and for that reason the Courts cannot relieve against it. 
 But not so with regard to a mistake in law. That is sometimes sus- 
 ceptible of proof. In relation to the general rules of property and of 
 common honesty, which every one of common understanding must neces- 
 sarily be taught by their intercourse with society; as that we have no 
 right to the property of another — and that when, as in this case, one has 
 parted from his property either voluntarily or for a good or valuable 
 consideration, his dominion and power of disposition over it ceases ; no 
 one will obtain credit for the pretence of being mistaken. But who that 
 has had any experience in the profession of the law, does not know that a 
 whole life of intense application is insufficient to develop all its mysteries, 
 and that the most untiring zeal and ardent pursuit must leave many of 
 the secret recesses unexplored ; and shall it be said that those whose pur- 
 suits in life are inconsistent with the study of the law, shall understand 
 its most subtle and intricate distinctions by intuition, and that at the 
 price of their fortunes ? I trust not — mistakes as to matters of fact have 
 always been regarded as relievable upon clear, full and irrefragable proof, 
 and mistakes in law ought to be upon the same footing, when the proof 
 is equally certain. Suppose a party claiming the benefit of a contract 
 founded upon a mistake of law, should, when put to answer it, admit the 
 fact and be base enough to insist on it. Where is the conscience so 
 seared against the claims of justice and common honesty, as not to revolt 
 at it ? Is not a mistake of this sort as susceptible of proof as a mistake 
 in a matter of fact. Lawyers are the professional advisers of the com- 
 munity, they are looked up to as oracles in this department, and when, 
 as in Lawrence v. Beaubien, their client is misled by them and makes a 
 contract against his interest, what higher evidence can be wanted of the 
 fact of mistake ? Is it not as satisfactory as the admission of the party 
 ^QKC)-] benefitted by the contract ? *This is only one mode of proof, and 
 "'-' I doubt not that there are others which would be equally satis- 
 factory. But we regard the question as definitely settled, and have only 
 thought it necessary to say this much, to vindicate it from the doubts in 
 which the opinion of the Chaucellor was calculated to involve it. 
 
 It is ordered and decreed, that the appeal be dismissed, and that the 
 decree of the Circuit Court be affirmed. 
 
 O'Neale, J., concurred. 
 
 Harper, J., absent.
 
 '252] CHAELESTOX, APRIL, 1833. 173 
 
 Thomas E. Screven v. William Joyner, Executor of Benjamin S. 
 Screven, and others. 
 
 On wliat principles nnd under what circumstances contribution -will be allowed. — 
 To entitle a plaintiff to contribution, he must show that his payment has 
 removed a common burthen fruui the defendant and himself; and that defendant 
 has received benefit from such payment. [*2G0] 
 
 The testator devised a tract of land called "Jasper's Barony," to his sons, Benja- 
 min and Thomas, and designated the portions of each ; a large amount of the 
 purchase money being unpaid, the vendor filed his bill against the executors, and 
 obtained a decree, charging the land with its payment ; and by a subsequent 
 decree, it was ordered to be sold: these decrees remained open, and were not 
 enforced for many years ; meanwhile the devisee, Benjamin sold his portion of 
 the Barony, and his purchaser took and held possession, until he acquired a title 
 under the statute of limitation ; afterwards the former decrees were revived, and 
 by order of the Court of Equity, the remaining portion of the Barony, being the 
 share of Thomas, was sold to pay the purchase money ; on a bill filed by Thomas 
 against Benjamin, for contribution. Held, that as the lien of the vendor under the 
 decrees in Equity, was lost and ended by the statute of limitation, the payment of 
 the decree by Thomas, conferred no benefit on Benjamin, and consequently he was 
 not liable to contribution. [*2G1] 
 
 John Screven, who died in tlie year 1801, by his last will and testa- 
 ment directed that a large body of land containing eight thousand acres, 
 and known by the name of " Jasper's Barony," which he had recently 
 purchased from Joseph Blake, should be divided by a certain line, 
 specified in the will, into two separate tracts ; one of which, called the 
 " Upper Plantation," containing six thousand acres, he devised to his son 
 Thomas E. Screven, the present plaintiff, and the other, called the 
 " Lower Plantation," containing two thousand acres, he devised to 
 another son, Benjamin S. Screven, the testator of the present defendant 
 William Joyner. The testator John Screven further directed, that, as 
 there might be some parts of each of these plantations conveniently 
 situated, which might be disposed of without injury to the residue, his 
 executors should sell such parts, or as much thereof as might be neces- 
 sary, and apply the moneys arising therefrom towards payment of the 
 purchase money of the Barony, remaining due to Blake. 
 
 In pursuance of these directions, the executors, within a *year r>!c253 
 or two after the death of the testator, sold portions of both the •- 
 "Upper" and the "Lower Plantations," and applied the proceeds 
 towards the payment of Blake's debt: and the devisees, Thomas PI 
 Screven, (by his guardian, being himself at that time a minor,) and 
 Benjamin S. Screven, went into'possessiou of their respective portions 
 of the residue. 
 
 At the death of the testator, John Screven, a large amount of the pur- 
 chase money of the Baronv remained due to Blake ; and a bill being hied 
 by hira against the executors, the Court of Equity, by a decretal order made 
 in 1802, directed that the land should stand mortgaged for the payment. 
 A second bill was filed by Blake, to revive and enforce the decretal order 
 of 1802, and the Court, by a decree made thereon in 1806, ordered 
 the land to be sold for the satisfaction of the debt. This decree was not 
 carried into effect, but various payments were made by the executors up
 
 174 SOUTH CAROLINA EQUITY REPORTS. [*253 
 
 to the year 1825, at which time there remained due the sura of $6,798 89, 
 with interest thereon from 2d June, 1818, and Blake filed a third bill, to 
 revive the decree of 1806, and to obtain a sale of the land for payment 
 of the Ijalance remaining due. To this bill the devisees of the Barony 
 were made parties, and by a decree made in 1827, and confirmed by the 
 Court of Appeals, the whole of the land remaining in their possession, or 
 in the possession of the executors, was ordered to be sold in conformity 
 to the prayer of the bill. 
 
 The only portions of the Barony then in possession of either the 
 devisees or the executors, were, a plantation called " Good Hope," con- 
 taining about one thousand acres, part of the "Upper Plantation," 
 which lemained in possession of the devisee, Thomas E. Screven, and a 
 plantation called "Pilgrim's Hope," containing seven hundred and 
 twenty-five acres, also part of the " Upper Plantation," which was then 
 in the possession of Dr. Richard B. Screven. The Court of Appeals 
 refused to order a sale of any other portions of the Barony ; but as it 
 appeared that certain persons to whom portions of the Barony had been 
 sold, were in possession claiming l)y adverse title, it was ordered that 
 Blake should have leave to amend, or file a supplemental bill, making 
 ^„r .-, such persons ^parties. This was accordingly done, by a fourth 
 -^ bill, filed in 1828, against several person who had i)urchased parts 
 of the "Upper Plantation" from the present plaintiff, Thomas E. 
 Screven. In this last mentioned suit a decree was pronounced by 
 Chancellor Harper, in 1830, confirming the titles of some of the pur- 
 chasers, and directing other portions of the land held by them to be 
 sold, in conformity to the original decree. 
 
 In the meantime, Thomas E. Screven, in 1827, filed the bill which 
 involves the subject of the present appeal. This bill was filed against 
 the executors, legatees and devisees of John Screven, to obtain an 
 account of the administration of his estate, and to have the assets, if any, 
 applied to the extinguishment of Blake's debt, in ease of the plaintiff's 
 land, and to compel the defendant, William Joyner, executor of Benjamin 
 S. Screven, who was then deceased, and the other devisees and legatees 
 of John Screven, to contri])ute for the relief of the plaintiff. The 
 matters of account being referred to the Commissioner, that officer 
 reported that a balance of $23,497 72 was due by Pvichard B. Screven, 
 one of the executors, upon his administration of the assets which had 
 come to his hands ; that the said Richard B. Screven was also liable, in 
 case the assets were insufficient, to refund a pecuniary legacy of £1,000, 
 which he had received payment in the year 1803 ; and that he had in his 
 possession a bond of John Posey, the husband of one of the female 
 legatees, the condition of which was to refund a legacy to his wife, of 
 which he had received payment, and on which bond there remained due 
 
 a balance of $ ; all of which sums, the Commissioner reported, as 
 
 applicable to the payment of the debt due to Blake, prior to, and in ease 
 of any and every part of the Barony. In January, 1830, the case came 
 on for hearing before Chancellor Harper, upon the bill, answers and 
 exceptions to the report ; and a decree was rendered, in which amongst 
 other things, the report of the Commissioner was confirmed, and the 
 executor, Richard B. Screven, ordered to pay over the balance due by 
 him, or so much thereof as might be necessary, and to refund this legacy
 
 *of; 
 
 25 4J CHARLESTON, APRIL, 1833. 175 
 
 of £1,000, if requisite, for the purpose of extinguishing Blake's debt, 
 *ancl exonerating the plaintiff's land ; and Posey's bond was di- r^of-r 
 rected to be assigned and delivered to the plaintiff, for the same ^ 
 purpose 
 
 In relation to the liability of the estate of Benjamin S. Screven to 
 contribute for the relief of the plaintiff, the decree is as follows : "With 
 respect to the claim against the estate of Benjamin S. Screven for con- 
 tribution, the case was very imperfectly made out. The claim is only in 
 respect of the portion of Jasper's Barony received by him. There is no 
 claim against him as executor. Now, as I understand it, by the decree 
 of 1827, in the case of Blake and Screven, to which Benjamin S. Screven 
 was a party, the whole of the Barony, including as well that part devised 
 to Benjamin S. Screven as that devised to the plaintiff, is directed to be 
 sold. It would seem then, that the estate of Benjamin S. Screven is 
 precisely in the same situation with the plaintiff, and has the same claim 
 to relief against the executor and residuary legatees. If the plaintiff's 
 portion of the land should be separately proceeded against, or sold, 
 leaving untouched Benjamin S. Screven's part, I suppose the plaintiff 
 would be entitled to contribution ; not, however, until all the rest of the 
 estate were exhausted. — The bill states that Benjamin S. Screven parted 
 with that part of the Barony which he received. There was no proof on 
 this subject, however, nor any admission in the answer of the executor, 
 Mr. Joyner. If he sold the land, it may still be liable in the hands of 
 the vendees. If, as has occurred in the case of the plaintiff, he has sold 
 to persons whose title has been perfected by the statute of limitations, a 
 different question might arise. I can conclude nothing on this part of 
 the case as it at present appears. The plaintiff may, if he thinks proper, 
 have a further reference to enquire and report whether any, and what 
 contribution ought to be made by the estate of Benjamin S. Screven. 
 On such reference the case may be fully made out." 
 
 Subsequent to, and soon after this decree, the plantations called Good 
 Hope and Pilgrim's Hope, heretofore mentioned, were sold by Blake 
 under the decree of 1827 ; and an appeal having been made from the 
 decree pronounced by Chancellor Harper in 1830, on Blake's supple- 
 mental bill, the Court *of Appeals, by a decree made in 1831, [-*256 
 declared the whole of Jasper's Barony subject to the lien of Blake's L 
 several decrees, except as to such parts as had been held adversely by 
 purchasers a sufficient length of time to be protected by the statute of 
 limitations : and as no one of the purchasers from Thomas E. Screven, 
 who were parties to that bill, were in that situation, the whole of the 
 lands purchased by them for him, were declared liable to Blake's debt, 
 and ordered to be sold accordingly. Whereupon the said lands were 
 sold, or arrangements made for the payment of Blake in exoneration of 
 said lands, by Thomas E. Screven, who was liable over to his vendees. 
 
 A reference having been taken to the Commissioner, conformably to 
 the decree of Chancellor Harper, he reported that Benjamin S. Screven 
 sold the residue of the " Lower Plantation" not disposed of by the exe- 
 cutors, consisting of eleven hundred acres, to Josiah W. AUston, for the 
 price of $17,000 ; that this sale was made in 1804, and that the pur- 
 chaser, or those claiming under him, having ever since been in quiet and 
 undisturbed possession, were, according to the decree on Blake's supple-
 
 176 SOUTH CAROLINA EQUITY REPORTS. [*256 
 
 mental bill, as recognised by the Court of Appeals, protected against 
 Blake's lien, by the statute of limitations. The Commissioner further 
 reported, that every portion of the "Upper Plantation," which had been 
 devised to Thomas E. Screven, had been sold either by the executors, or 
 by Blake under his several decrees, or had in some manner been 
 ultimately subjected to the payment of the debt due to Blake : and 
 finally, that the executor, Richard B. Screven, had wasted the assets 
 which came to his hands, and was either utterly insolvent, or nearly so ; 
 and that the plaintiffs could have no reasonable prospect of relief either 
 from the balance due by his executor, or from the legacy of £1000, 
 which he had been ordered to refund. 
 
 It appeared, however, by several of the papers, and particularly by 
 Chancellor Harper's decree, that the plaintiff received from the executor, 
 Richard B. Screven, eleven negroes, being the price of the plantation 
 called " Pilgrim's Hope," M^hich was purchased by that executor ; of 
 which negroes the plaintiff has never been deprived, nor have 
 ^i)^--! "^"they ever been subjected in his hands, to the payment of Blake's 
 -I debt. And although " Pilgrim's Hope" has since been sold by 
 Blake, and Richard B. Screven may consequently have a claim upon the 
 plaintiff for the value of these negroes ; yet such claim can only be a set- 
 off j^'f'o tanto, to the large sums due by Richard B. Screven ; and the 
 plaintiff can never, therefore, be deprived of his portion, saved to him 
 out of the devise of Jasper's Barony. 
 
 Upon the coming in of the Commissioner's report, the cause came on 
 for hearing upon the equity reserved, before Chancellor Johnston, who, 
 after argument, ordered and decreed, that the estate of lienjamin S. 
 Screven should contribute for the relief of the plaintiff, and directed a 
 reference to the Commissioner to ascertain and report the amount of such 
 contribution. 
 
 No reasons were assigned in the order for this decision. The defend- 
 ant, William Joyner, appealed therefrom ; and moved that the said 
 order may be reversed for the following reasons. 
 
 1. That the devises to the plaintiff and defendant's testator are distinct 
 specific devises, and neither of the devisees is entitled to call upon the 
 other to contribute for the removal of incumbrances specifically affecting 
 the land devised to himself 
 
 2. That the land devised to the defendant's testator, being protected 
 against Blake, is equally protected against all persons claiming under 
 him, and cannot be subjected to a new liability to the plaintiff, by reason 
 of his payment of his debt due to Blake. 
 
 3. That the land devised to the defendant's testator not being directly 
 subject to Blake's lien, cannot be made indirectly liable by reason of the 
 liability of the plaintiff's land. 
 
 4. That if the land devised to the defendant's testator is liable to the 
 plaintiff, the remedy of the plaintiff is against the land, or the persons in 
 possession, and not against the estate of the defendant's testator. 
 
 5. That the defendant's testator having sold the laud devised to him, 
 *2581 ^"^ I'eceived the proceeds so long ago as *1804, more than twenty 
 
 -' years previous to the filing of the plaintiff's bill, is protected by 
 lapse of time and the statute of limitations, from all liability to refund.
 
 *258] CHARLESTON, APRIL, 1833. 177 
 
 either for the benefit of the devisees or legatees, or for the benefit of 
 creditors. 
 
 6. That the assets of the estate being originally sufiBcient for the pay- 
 ment of debts, and the deficiency of assets which forms the foundation of 
 the plaintiff's claim for contribution, being occasioned by a devastavii of 
 the executor, committed long subsequent to the period at which the 
 defendant's testator sold and received the proceeds of the lands devised 
 to him, the estate of the latter is not bound to refund, independently of 
 the protection afforded by the statute of limitations. 
 
 t. That the plaintiff has not made out a case which entitles him to call 
 upon the estate of the defendant's testator for contribution. 
 
 Bailey, for the appellant, contended, that the defendant's testator, if 
 liable at all, must be so as terre-tenant and devisee ; his only liabilitv is 
 in regard to his land. The ground of contribution is equality of benefits 
 and burthens ; Harris v. Ferguson, 2 Bailey, 397 ; and that the payment 
 or loss by the party asking relief, has conferred a benefit, or relieved ihe 
 other party from some burthen ; 1 Cox's Ch. Cases, 318 ; 1 Eq. Ca Ab. 
 contribution, (a) 13; Show. P. C. 18, 19. Unless therefore the plaini iff, 
 in satisfying Blake's debt, has conferred a benefit on the defendant's 
 testator, or relieved his estate from some burthen, there is no ground for 
 contribution. No benefit has been conferred — the land was not liable to 
 Blake's debt, when the payments were made; for, having been sold and 
 in the occupation of a bona fide purchaser, he acquired a title under the 
 statute of limitations — M'Rea v. Smith, 2 Bay, 338 ; and in reference to 
 this land, this doctrine was settled in Blake v. Hey ward, February, 1831. 
 Blake could not pursue the money recovered by Benjamin S. Screven for 
 the lands sold — his only remedy was against the land ; however that may 
 be, he could not follow the money, after the land became exempted by the 
 statute of limitations, 3 Coke Rep. (a) 14. *The plaintiff might r-^^^rn 
 have been protected against Blake's decree, so far as regards Ben- ^ 
 jamin's proportion of the purchase money, by reason of his laches and 
 neglect to enforce it ; and this may, even yet, afford him ground for relief 
 against Blake, but furnishes none against the defendant. The defici-iicy 
 here is not for want of assets, but caused by a devastavit of the executor ; 
 the whole estate was liable for Blake's debt, and if contribution is to be 
 made, are not all the devisees liable ? But the plaintiff has received prat 
 payment, by the negroes received from the executor, on a sale of " I'il- 
 grim's Hope." And where a legatee has received part of his legacy, and 
 the executor wastes the balance of the estate, there can be no contribu- 
 tion ; 1 P. W. 494; Lupton i: Lupton, 2 John. Ch. Rep. 626. 
 
 7?. B. Smith, Atlorneij-General, for the plaintiff". The decree of 1802, 
 fixing the liability of the lands, and that of 1806, ordering them to be 
 sold, established the right of contribution. By the decree of 1806, the 
 whole estate of John Screven was subjected to Blake's debt: 1st, the 
 Barony lands— 2d, the funds appointed by the will ; and Sdly, the residue 
 of the real and personal estate. Benj. S, Screven was executor, and a 
 party to these decrees, and could he now deny his liability for this debt, 
 or that he is bound by these decrees ? Benjamin being liable for the del)t, 
 and a party to the decree which ordered Thomas" land to be sold for its 
 payment, becomes liable for contribution. Where land subject to au 
 incumbrance is sold to several, and the debt is exacted of one of them, he 
 YoL I.— 12
 
 178 SOUTH CAROLINA EQUITY REPORTS. [*259 
 
 is entitled to contribution from the others ; Carthew, 3. And where the 
 lands of the ancestor is bound for his debts, which are paid by one of his 
 devisees, the others must contribute ; Clowes v. Dickerson, 5 John. Ch. 
 Rep. 240; Select Cases in Chancery, 24; 4 John. Ch. Rep. 531. If all 
 the land had been alienated, could not Blake have compelled them to 
 refund and pay his debt ? The property of the devisees stands as surety 
 for the executor — Benjamin and Thomas may be considered such, and 
 raav be subrogated to the rights of the creditor; 11 Yes. 22; 2 Vernon 
 
 :k.-jpol ^^^^'^ ^ '^°^"- ^^- -^^l^- ^^^'^ ^^^- ^^^- '^^^ *devastavit of 
 ~ -' the executor must prejudice both devisees alike ; and where one 
 
 legatee has received his legacy in full, it is not clear that he may not be 
 
 compelled to refund, 2 Yes. 193. — An executor who has voluntarily paid 
 
 a legacy cannot compel the legatee to refund, but if the executor prove 
 
 insolvent, the other legatees may have contribution, 1 Ch. Ca. 133, 136, 
 
 248; 2 lb. 132. 
 
 Pettigru, in reply. The bill of 1802 was against the execntors of John 
 Screven ; BenjaVnin and Thomas were infants, and their answers not 
 sworn to, consequently are not answers, and they not parties. That part 
 of the decree which relates to contribution, is not therefore obligatory. 
 But can a creditor have such a decree as this hanging over an estate ? 
 He is entitled to a decree to be paid in due course of administration. 
 Blake could have extended only one-half of Thomas' land. Francis' 
 Maxims, 15, sustains Lord Coke's doctrine. If one legatee refund, then 
 the other must; but the decree of 1827 imposes a lien only on the lands 
 in possession of the devisees ; no liability exists against the lands of 
 Benjamin — the payment of the decree confers no benefit, and there is, 
 therefore, no ground for contribution. Lands devised are liable for the 
 payment of debts, after the personal estate is exhausted ; but if a creditor 
 stands by, as Blake has done, and permits the personalty to be wasted, 
 has he any right to pursue the land ? 
 
 O'Neall, J. In the view which we have taken of this case, it will 
 only be necessary to enquire whether the defendant's testator is liable to 
 contribution on account of Blake's decree. 
 
 The liability to contribute is the result of a general equity founded on 
 the equality of "burthens and benefits ;" Harris u. Ferguson, 2 Bail. 397. 
 To establish the right of contribution, the plaintiff must show that his 
 payment has removed a common burthen from the shoulders of himself 
 and the defendant, and that they are each benefitted by it. This occurs 
 in all cases of payments made by one surety, on the debt for which 
 *.9/»T -] several are bound — a common burthen *is removed and a common 
 ^ benefit received. But the doctrine of contribution is not at all 
 founded on contract ; it applies to cases where the liability, it is true, 
 arises out of a contract, to which the plaintiff and defendant were parties ; 
 it is not, however, necessary that they should be bound by one contract; 
 it may arise out of several, if they have thereby incurred a common 
 liability. So, too, it applies to cases where the liability does not, in any 
 shape, arise out of a contract, as when a common property, held by 
 purchase, descent or devise, is liable to the payment of a sum of money, 
 and one is compelled to pay the whole, he shall have contribution from 
 
 I
 
 *261] CHARLESTON, APRIL, 1833. 179 
 
 his co-tenant. In cases where a benefit is derived from the destruction 
 of the property of one for the preservation of another; when tliere is a 
 community of risk, there may be contribution. But to make out such a 
 claim, tlie benefit must be shown to have been the necessary and proper 
 consequence of the loss. For if the benefit is uncertain, or the loss was 
 not the means of preservation, there can be no contribution. 1 Eq. Ca. 
 Ab Tit. Con. & Aver. (.4) 13. 
 
 The right of the complainant to call on the defendant for contribution, 
 depends not upon any act or personal liability of his testator. If he is 
 liable at all, it must be that the land devised to him was liable, as well as 
 that of the complainant, to the lien of Blake's decree at the time it was 
 enforced and the complainant's land sold under it. To make out either 
 the community of burthen or benefit, the decree must have had an equal 
 lien on both, and both must have had the benefit of the removal of the 
 lien. — The decree, as a subsisting lien, constitutes the only liability to 
 which the land of either was subject. If that was ended as to one, and 
 not as to the other, there was no liability on the former, to be removed 
 by the latter. Originally both were affected alike by the general lien. 
 A lapse of near twenty years, and a conveyance of his land by the de- 
 fendant's testator, may have changed the operation of that lien, and may 
 have ended the defendant's liability, while that of the complainant remained 
 unimpaired. It is necessary, therefore, to enquire whether the land 
 *devised to the defendant's testator, was liable to sale under r^^^nc^ 
 Blake's decree, at the time the complainant was compelled to pay ^ 
 it? In 1804, the defendant's testator sold to Josias W. Alston : his title 
 accompanied by an actual adverse possession, was complete and legal, 
 against the lien of Blake's decree, after the expiration of five years. 
 M'Rea v. Smith, 2 Bay, 339. In 1809 or 1810, the land was protected 
 from the lien of Blake's decree, and therefore, as to it, it was and must be 
 considered as then ended. The payment by the complainant was between 
 1827 and 1832, a period of at least seventeen years after the land devised 
 to the defendant's testator was exonerated by the operation of the statute 
 of limitations, from the lien of Blake's decree. 
 
 I agree with the complainant's counsel that the liability of the defend- 
 ant to contribute, depends upon the question whether Blake could have 
 recovered against him, at the time he did against the complainant. We 
 have seen that the lien of the decree was gone in 1810 ; in 1823, Blake 
 filed his bill to make the complainant's land liable ; Blake could not 
 therefore then have made the land devised to the defendant's testator 
 liable under the decree. Could he have had any recovery on account of 
 his sale ? If he could ever have recovered any thing on tliat account, it 
 must have been on the ground that the money received by the defendant's 
 testator, was to be regarded as received to the use of the creditor under 
 the decree. This in equity might have made the defendant a constructive 
 trustee for the creditor. But this constructive trust would not prevent 
 the operation of the statute of limitations ; the defendant in such a case 
 holds in his own right and adversely to that of all others. From the 
 time, therefore, that the creditor knew of his sale, the statute commenced 
 to run, and as the claim for the account in Equity is analogous^ to the 
 action for money had and received at law, it would run, out in four 
 years from that time. In 1806 this fact was not only known to Blake,
 
 180 SOUTH CAROLINA EQUITY REPORTS. [*262 
 
 but is made the ground of exempting that part of the Barony from sale, 
 under the decree then made. In 1810, then, the defendant's testator 
 would have been protected by the statute of limitation from any recovery 
 on the part of Blake. 
 
 ^ -J ^Neither the land nor the defendant's testator being liable at 
 -^ the time the complainant was compelled to pay the decree, it 
 follows that the complainant has no right to claim a contribution from 
 the defendant, on account of a payment which did not, and could not 
 benefit it. 
 
 It may be, and I think it probable, that if the complainant had resisted 
 payment of Blake's decree, on the ground that by his laches the land of 
 the defendant's testator was exonerated from its lien, that the complainant 
 would only have been held liable for his aliquot proportion of the debt. 
 For in 3 Coke's Rep. 14, it is said, "Note reader, when it is said before 
 and often in our own books, that if one purchaser be only extended for 
 the whole debt, that he shall have contribution ; it is not thereby intended, 
 that the others shall give or allow him anything by way of contribution ; 
 but it ought to be intended, that the party who is only extended for the 
 whole, may, by audita querela or scire facias, as the case requires, defeat 
 the execution, and thereby he shall be restored to all the mesne {)rofits, 
 and compel the conusee to sue execution of the whole land. So, in this 
 manner, every one shall be contributory, hoc est, the land of every terre- 
 tenant shall be equally extended." In this State, the creditor would, at 
 law, have the right to make his money by a Ji. fa. out of any of the land 
 subject to the lien of his judgment. And if the land of one purchaser, 
 heir or devisee was sold, he would have a clear right in equity, to con- 
 tril)ution from the others whose land was equally subject to the lien. If 
 the act or laches of the creditor defeats that equity, it would seem that 
 equity ought to prevent him from enforcing his legal advantage, by hold- 
 ing the party only liable to him for so much of the debt as would be 
 properly charged on his land as its proportionate share. In other words, 
 he ought to be protected against the judgment, on paying so much towards 
 it as he would have been in equity liable to contribute, if the land which 
 is exempted by the act or laches of the creditor, had been sold for the 
 payment of the whole debt. Be this however as it may, the complainant, 
 by paying a debt which the defendant's testator was not in any event 
 liable to pay, cannot acquire any rights against him. 
 *9r4.1 * "^^^ contended that the fact that B. S. Screven was the 
 -■ executor as well as the devisee of John Screven, (deceased) and 
 that he was a party to the decrees, made him liable. It appears that in 
 1807 he terminated his relation of executor to his testator's estate, by 
 fully accounting for the funds in his hands and removing from the State. 
 Since that time he has not acted as executor, and there is no pretence 
 that he is liable for anything in that character. If he is not liable to 
 account as executor, the fact that he was the executor, cannot have any 
 effect upon him in any other character in which he may be called on for 
 an account. 
 
 He was a party to the decree obtained by Blake, and if upon it any 
 action could be sustained against him, it might make him liable. But 
 there is no recovery against him for a debt or demand, nor is there any 
 sum ascertained by the decree, to be in his hands, applicable to its pay-
 
 *264] CHARLESTON, APRIL, 1833. 181 
 
 merit. The decrees of 1802 and 1806, merely establish the debt against 
 his testator's estate ; and in consequence of their legal effect, make the 
 whole of the estate of the testator liable for their pajunent ; no personal 
 liability is thereby cast on the defendant's testator, and of conrse, the fact 
 that he was a party, will not deprive him of the defence now relied on. 
 
 It is therefore ordered and decreed, that so much of Chancellor 
 Harper's decree as directs a reference to ascertain whether any, and 
 what contribution, ought to be made by the estate of Benjamin^ S. 
 Screven ; and the decree of Chancellor Johnston, upon the report of 
 the Commissioner, directing contribution to be made by the estate of 
 Eenjamin S. Screven, deceased, for the relief of the complainant, be 
 reversed. 
 
 Johnson and Harper, Js., concurred. 
 
 *Benjamin Adams, and others. Heirs- at-Law of Ann Adams, 
 
 V. Benjamin S. Chaplin, and others, Heirs-at-Law of [*265 
 Benjamin Chaplin. 
 
 A ■witness may attest the execution of a "will, by signing the initials of bis or her 
 name.[*266] 
 
 Where the testator devised a tract of land to his son " John, and to him and his 
 heirs and assigns forever ; Vjut if he should die without lawful heir, or before he 
 is twenty-one years old," then the land to go to another son : the word " cr" was 
 construed " and," and it was held, that John took an absolute estate, in fee, 
 defeasible on his dying without issue under twenty-one years of age; that the 
 limitation over, was not after an indefinite failure of issue, but restricted to the 
 
 . event of the devisee's dying without issue under twenty-one, and was therefore 
 good as an executory devise. (a) [*2G7] 
 
 Where tliere was a devise to J. C, " but if he should die without an heir lawfully 
 begotten by him," then a limitation over : Held, that the limitation was too 
 remote and therefore void.[*2ti8] 
 
 The doctrine of merger considered [*270] 
 
 Where a fee simple conditional is granted, the whole estate is in the tenant in fee — 
 there is no estate left in the grantor. The possibility of reverter, on the deter- 
 mination of the fee by the death of the tenant without lieirs of his body, is not an 
 estate, it is neither the subject of inheritance nor devise ; and therefore, the fee 
 conditional in the heir-at-law, cannot merge in the possibility of reverter, if they 
 should both meet in the same person. [*27r)] 
 
 Devise in '7(3, to J. C. without words of perpetuity or inheritancp, " but if he should 
 die without an heir lawfully begotten by him," then a limitation over — the lim- 
 itation being too remote and therefore void, it was held, tliat under the act of 
 1824, and the adjudged cases since the devisee J. C, took an estate in fee.(*281 ) 
 
 This case came to a hearing before Chancellor Harper, at Coosa- 
 whatchie, January, 1830. The decree so fully recites the facts, and 
 develops the merits of the case, as to supersede the necessity of any 
 other report. 
 
 Harper, Chancellor. Benjamin Chaplin, the elder, of St. Helena 
 Parish, by his will, dated in 1766, devised the tract of land which is m 
 
 (a) Scanlan v. Porter, 1 Bail. 427. Bedon v. Bedon, 2 lb. 231. 

 
 182 SOUTH CAROLINA EQUITY REPORTS. [*265 
 
 question in this suit, in manner following : " I give and bequeath to ray- 
 son John all the rest of my tract of land where I now live, be it more or 
 less, to him and his heirs, for ever ; but if he should die ivUhout lawful 
 heir, or before he is tiventy-one years old, then 'tis my iny loill the said 
 land should go to and descend to my son William, and to his heirs for 
 ever." John Chaplin, the devisee, by his will, dated in 1716, devised the 
 same land as follows — " I give and bequeath to my dear and loving son, 
 John Chaplin, my tract of land on Port Royal Island, lying on Jericho 
 Creek; but if he should die ivithout an heir knvfully begotten by him, 
 then I will and desire that the said tract of land be given to my brother, 
 William Chaplin." John Chaplin, the testator, died soon after the 
 execution of his will, leaving John Chaplin, his son and only child, who 
 entered on the land, and died in 1826, leaving no issue and never having 
 been married. William Chaplin, to whom the land is devised over by 
 the will of the testator, John, died many years ago intestate and without 
 issue, before the Act of 1791, abolishing the right of primogeniture, 
 leaving, at his death, an elder brothei', Benjamin, and a sister, Ann 
 Adams. The complainants are the descendants of Ann Adams, and 
 claim a moiety of the land, either as heirs and next of kin of William 
 Chaplin, the devisee over, by the will of John Chaplin, if that limitation 
 shall be held to have been good ; or, as heirs and next of kin of the 
 testator John Chaplin, if the reversion or possibility of reverter, was in 
 *9fifi1 ^^^'i charging that John Chaplin,* the younger, either took a 
 -I mere life estate, or a fee simple conditional, which was determined 
 by his death, without issue, in 1826, and that those must take who answer 
 the character of heirs, at the time of the determination of the estate, or 
 the happening of the contingency on which the limitation over was to 
 take effect. In 1806 the land was sold under judgment and execution, as 
 the property of John Chaplin, the younger, and purchased by Benjamin 
 Chaplin, the brother of William and the testator John, to wdiom the 
 sheriff executed titles. In 1815, the said Benjamin Chaplin conveyed 
 the land in trust, for his daughters, who are defendants to the suit. The 
 defendant, Benjamin S. Chaplin, son of the said Benjamin Chaplin, dis- 
 claims all interest in the land. 
 
 The first question which arises in the case, is, what estate in the land, 
 John Chaplin, the elder, took under the will of his father Benjamin 
 Chaplin, and consequently, whether his son, John Chaplin the younger, 
 took as a purchaser under his will, or by virtue of the limitation of his 
 grandfather's will. A preliminary objection was made, that the will of 
 Benjamin Chaplin appears to have been attested but by two subscribing 
 witnesses, and consequently was not duly executed to pass real estate. 
 The name of Martha Barnwell first appears subscribed as a witness ; 
 then follow the letters E. E., and then the name of John Barnwell. The 
 certified copy of the will was admitted in evidence, I suppose, on the 
 proof which appears to have been made of it before a commissioner, to 
 whom a dedimus for that purpose was issued by the Governor. The 
 witness, John Barnwell, declares that he subscribed as a witness, together 
 with Martha Barnwell and Elizabeth Ellis. If Elizabeth Ellis subscribed 
 by merely making her initials, I suppose that this was sufficient, under 
 the authorities of Harrison v. Harrison, 8 Ves. 185, and Addy v. Grix,
 
 *266] CHARLESTON, APRIL, 1833. 183 
 
 8 lb. 504, wliicli determine that the making of a mark is sufficient signin"- 
 by a witness. 
 
 Then, as to the estate devised by the will. It was argued, that though 
 the devise to John is to him and his heirs, for ever, yet being limited 
 over on the event of his *dying without lawful heir, to his brother, r^^n^ 
 who might be his heir, this is equivalent to a limitation over on ^ -^ ' 
 the event of his dying without issue, and restricts the preceding words, 
 so that it would make it an estate tail in England, or a fee simple con- 
 ditional in this country. That being a fee simple conditional, John 
 Chaplin, the younger, took nothing from his father's will, but X)er formam 
 cloni, as heir of limitation, under the will of his grandfather, and the con- 
 dition being once performed, by John, the elder's, having issue, the heir 
 to whom the estate descended might alienate and bar the reverter, with- 
 out any necessity for his having issue, and that the levy and sale by the 
 sheriff, being the act of law, was equivalent to an alienation by the heir 
 himself. There is no doubt but if lands be given to a man and his heirs, 
 and limited over on the event of his dying without issue, or heirs of his 
 body generally, that will restrict the effect of the preceding words, and 
 make it an estate tail, or fee simple conditional. The limitation over 
 after an indefinite failure of issue, sufficiently indicates the intention to 
 give an estate tail, with a remainder expectant on its determination. But 
 the devise over, in this case, is, " If he should die without lawful issue, or 
 before he is twenty-one years old." I am satisfied, that here "or" is to 
 be construed "and," and consequently, that the limitation over is not 
 after an indefinite failure of issue, but restricted to the event of the 
 devisee's dying without issue under the age of twenty-one, and is, there- 
 fore, a good executory devise, after the gift of the estate in fee-simple. 
 There are several cases precisely in point, and they seem to me founded 
 on good reason, to effect the testator's intention. They go upon this, 
 that it cannot be supposed to have been the testator's intention, in the 
 event of the devisee's dying under twenty-one, but leaving issue, to give 
 the estate away from the issue ; yet this would be the effect of construing 
 the words disjunctively, making an executory devise dependent solely on 
 the event of the first devisee's dying under twenty-one, and a limitation 
 over after an estate tail. Lord Hardwicke, in Brownsword v. Edwards, 
 1 Yes. 249, refers to cases in Croke, deciding the *precise point ; j-*2(j8 
 and to the same effect are the cases of Fairfield v. Morgan, 2 Bos. 
 & Pull. New Rep. 38, and Eastman v. Baker, 1 Taunt. 174. There are 
 other cases to the same effect. I am satisfied that under the will pf his 
 fatiier, John Chaplin, the elder, took an absolute estate in fee simple, 
 subject only to be divested on an event which never happened. 
 
 We are next to consider the devise by the will of John Chaphn, the 
 elder. The devise, in the first instance is to John Cliaplin, the younger 
 without words of inheritance or perpetuity, which, in England, would 
 give but an estate for life. The estate is limited over, however,_to the 
 brother of the testator, if the devisee should die " without an heir law- 
 fully begotten by him." This is equivalent to dying without he^irs of his 
 body, and according to the decision in Forth v. Chapman, I Pr. \\ ms. 
 663, which has been followed ever since, this is sufficientto enlarge by 
 implication, the preceding estate for life, into an estate tail. 1 he same 
 implication, will, I think, in this country make it a fee simple conditional.
 
 184 SOUTH CAROLINA EQUITY REPORTS. [*268 
 
 It is clear, that the limitation over to the testator's brother, "William 
 Chaplin, was too remote, and void as an executory devise. In the case 
 of Bailey v. Seabrook, decided by me at Charleston, I considered the 
 question whether a remainder could be limited after a fee conditional, 
 and determined that it could not. I refer to that case for the reasons of 
 my opinion. The condition not having been performed, the devisee never 
 having had issue, the estate is therefore supposed, on the death of John 
 Chuplin, the younger, in 1826, to have reverted to the right heirs of 
 John Chnplin, the elder. The question is, who are those heirs ? At the 
 diath of John Cliai)lin, the elder, his son, John, was his heir-at-law, and 
 the right of possibility of reverter, which his father had in the land, is 
 supposed to have descended to him. On the part of the complainants, it 
 was argued that those must take who answered the character of heirs of 
 John Chaplin, the elder, at the time the estate of John Chaplin the younger 
 determined ; according to the rule laid down by Cruise, in his Treatise on 
 Ileal Property, 3 vol. 412, tit xxix., chap. iv. 2, "that where a person 
 *9rQl ^"titled to *an estate in remainder or reversion, expectant on a 
 
 -I freehold estate, dies during the continuance of the particular 
 estate, the remainder or reversion does not descend to his heir; because 
 he never had a seisin to render him the stock or root of an inheritance; 
 but it will descend to the person who is heir to the first purchaser of such 
 remainder or reversion, at the time when it comes into possession." 
 "Thus it was laid down by the Court of King's Bench, in 34 Eliz., that 
 of a reversion or remainder expectant on an estate for life, or in tail, 
 there, he who claims the reversion as heir, ought to make himself heir to 
 him who made the gift or lease, if the reversion or remainder descend 
 from him ; or, if a man purchase such reversion or remainder, he who 
 claims as heir, ought to make himself heir to the first purchaser." The 
 doctrine is very fully illustrated by Cruise, in the chapter referred to, and 
 I have little douljt is applic'al)le to the present case. Our act of distri- 
 butions has so far altered the English law, that actual seisin is no longer 
 necessary to enable one who has a present title to an estate, to become 
 the stock or root of inheritance. It provides for distribution, "when 
 any person jjossessed of, interested in, or entitled to a real estate, in his 
 own right in fee simple," shall die intestate. This, I suppose, would be 
 held to apply to a reversion or remainder, after an estate for life, or an 
 estate tail, if such were allowed in this country, because such a remainder 
 or reversion is an estate of fee simple. But the authorities are, that the 
 right of reverter after a fee simple conditional, is no estate in the land, 
 but a mere possibility, and therefore it is, no remainder can be limited 
 after the preceding fee. This right then, I su})pose, is not affected by 
 the act, but must go as at common law, to the person who can make him- 
 self heir to the grantor of the fee conditional, when that estate determines. 
 The complainants and defendants, together, were such heirs, by virtue of 
 our statute abolishing the right of primogeniture, being nephews or nieces, 
 and next of kin of John ClKi|)lin the elder. An heir is the creature of the 
 law, and there can be l)ut one rule of succession. 
 *(^f7(\-] This view of the case would seem to entitle the complainants* 
 
 -J equally with the defendants, to a moiety of the land. But it was 
 further argued, on the part of the defendants, that although by the words 
 of the will of John Chaplin, the elder, only a fee simple conditional was
 
 *270] CHARLESTON, APRIL, 1833. 185 
 
 given, yet by his death the right of reverter, which would have remained 
 in him if he had conveyed in his life time, descended or accrued to his 
 son, who was his heir-at-law. Tiiat having thus the conditional fee, and 
 the ulterior right to the fee absolute, the lesser estate merged in the 
 greater, and his estate was a fee simple absolute. This is a suliject of 
 considerable difficulty, and I have not found the authorities so clear as 
 could be wished. I have come to the conclusion, however, that this is a 
 correct view of the case, and that John Chaplin, the younger, had an 
 absolute fee simple. The doctrine is expressly laid down by Cruise, 1st 
 vol. 92 : " It has been stated that whenever a particular estate in land 
 vests in the person who has the fee simple of the same land, such partic- 
 ular estate is immediately drowned or merged in it. In consequence of 
 this principle, if an estate had been given before the statute tie donis, to 
 A, and the heirs of his body, it would have merged, if the fee simple was 
 limited to A by the same conveyance, or come to him aftertvards.''^ So, 
 in Preston's conveytyicing, 3d vol. 258, it is said, that "determinable 
 fees, qualified fees, and conditional fees, will merge in the fee simple, or 
 in any fee of the same or a larger extent," Neither of these authors 
 refer to any express authority in support of their positions ; they are 
 their own inferences from acknowledged principles. There is no doubt 
 of the general principle, that a person having a particular estate, and af- 
 terwards acquiring a greater estate, or the fee, the lesser estate is merged 
 in the greater. The ditFiculty arises from what is said concerning the 
 nature of the right which remains in the donor of a conditional fee sim- 
 ple — that it is no estate or interest, but a mere possibility, which cannot 
 be granted or assigned. Co. Lit. 18 a. Lord Coke says, that "he who 
 hath a fee conditional or qualified, hath as ample and great an estate, as 
 he that hath a fee simple absolute," and there cannot be two fees simple 
 in the same land. Yet, perhaps, the difficulty is rather verbal than sub- 
 stantial. Lord Coke says, in the same *page, there cannot be two ri^c)>j-\ 
 fees simple absolute in the same land. He adds, " and yet in sev- ^ 
 eral i)ersons, by act in law, a reversion may be in fee simple in one, and a 
 fee simple determinable in another, by matter ex post facto: as if a gift 
 in tail be made to a villein, and the lord enter, the lord hath a fee simple 
 qualified, and the donor, a reversion in fee. But if the lord enfeoff the 
 donor, now both fee simples are united, and he hath but one fee simple in 
 him." This seems a plain instance of merger. He explains further, that 
 one fee simple cannot be made to depend upon another, by the grant of 
 the party. Here, it was the act of the law casting the right of reverter 
 on John Chaplin, the younger, which merged the estate given by the will. 
 Or, rather, I think John Chaplin, the younger, must be regarded as in by 
 descent, and taking nothing by the will. 
 
 Justice Blackstone, 2 Com. 178, puts the doctrine of merger on the 
 footing of a virtual or implied surrender or release of the inferior estate : 
 "In the common cases of merger of estates for life or years, by uniting 
 with the inheritance, the particular tenant hath the sole interest in him, 
 and hath full power to defeat, destroy or surrender them to him that hath 
 the reversion; therefore, when such an estate unites with the reversion in 
 fee, the law considers it in the light of a virtual surrender of the inferior 
 estate." If the superior estate be released or conveyed to the tenant of 
 the particular estate, the same effect takes place : the party is presumed
 
 186 SOUTH CAROLINA EQUITY REPORTS. [*271 
 
 to surrender to himself. Now the possibility which remains in the donor, 
 after the grant of a fee simple conditional, is, certainly, in its nature, 
 capable of being surrendered or released, though not of being granted or 
 assigned. As is said by Lord Hardwicke, in Wright v. Wright, 1 Yes. 
 411, in reference to the case before him, " This is still, in notion of law, 
 a possibility ; which, though the law will not permit to be granted or 
 devised, still it may be released, as all sorts of contingencies may, to the 
 owner of the land." If a party grant a fee conditional, and by the same 
 deed limit the remainder to the donor, I suppose this is in effect a grant 
 of the absolute fee simple, though the limitation of the remainder to an- 
 other would have been void. It is a grant of the fee conditional, 
 *9'79'l *^i^d a release of the possibility of reverter. I suppose it cannot 
 -' be doubted, but that if John Chaplin, the elder, had conveyed a 
 fee simple conditional in this land, to his son, by deed, in his life time, 
 and the son had reconveyed to his father, the father would have had an 
 absolute fee simple, according to the authority cited from Coke. This 
 would have been a merger. So, if after conveying to his son by deed, 
 the father had released to him his possibility of reverter, I suppose it can 
 be as little doubted that the son would have had an absolute fee simple. 
 But I do not perceive that it can make any difference, that, instead of 
 taking by the release of his father, the same right of reverter was cast 
 upon him by the operation of law. 
 
 I said the same right was cast upon him by operation of law ; for such, 
 I think, must be the conclusion. When Cruise, in a passage before cited, 
 says, that " where a person entitled to an estate, in remainder or reversion, 
 expectant on a freehold estate, dies during the continuance of the partic- 
 ular estate, the remainder or reversion does not descend to his heir," it is 
 plain, from the sequal of the chapter, that his words must be taken in a 
 qualified sense. He means that it does not descend to and vest in the 
 heir, so as to make him a new stock of inheritance, and capable of trans- 
 mitting to his heir ; but that the person who takes after the determina- 
 tion of the particular estate, must take as the heir of the first purchaser. 
 The latter part of the chapter is employed in showing, that when the 
 heir of the first purchaser of the remainder or reversion, exercises an act 
 of ownership over it, he thereby constitutes himself a new stock of inheri- 
 tance, and capable of transmitting. He cites particularly the case of 
 Stringer v. 'New, 9 Mod. 363, where a person, who was tenant for life, 
 with remainder in fee, after estates tail to the right heirs of his father, 
 whose heir he was, conveyed the estate to trustees for payment of his 
 debts ; this was held to be such an act of ownership as made him a new 
 stock of inheritance. Lord Hardwicke says, speaking of the lease 
 and release, " It likewise passed the reversion in fee ; for, as he was right 
 heir of his father, he had a reversion to grant ; though it would descend 
 5^ghq-| to the right heirs of his father, without any such ^alteration." It 
 -^ was never doubted, I imagine, if a person grants an estate tail, 
 with reversion to himself, and dies, his heir at law may grant or release 
 the reversion ; and so any intermediate heir, if there should be any before 
 the termination of the estate tail. Preston says expressly, after speaking 
 of fees determinable, " On these instances, and indeed, on all limitations 
 which can be ranked under this class, it is observable that the reversion 
 or remainder expectant on these estates, or the possibility of reversion,
 
 *273] CHARLESTON, APRIL, 1833. 187 
 
 must remain in some person ; and that a release or other proper assu- 
 rance from that person, will give to this estate the quality of a sim])lc and 
 absolute fee." — 1 Preston on Estates, 440, 441. If this fee conditional 
 had been given to another person, by the will of John Chaplin, the elder, 
 it would hardly have been doubted but that his sou and heir-at-law might 
 have released the possibility of reversion. He could not release to him- 
 self, however, and therefore it is that the law operates a merger of his 
 estate. It adds some strength to these views, that it is only by construc- 
 tion from the words of the statute de donis, that estates tail are exempted 
 from being liable to merge in the fee when the tenant in tail in possession 
 is also entitled to the reversion. 1 Cruise, 92; 2 Blac. Com. 17Y, 178; 
 3 Preston's Conveyancing, 342. It is in favor of the issue, that an estate 
 tail is privileged from merger, and therefore its exemption continues only 
 so long as the privileges of the statute in favor of the issue are annexed 
 to that estate. If therefore, the right of the issue be barred, as by a 
 fine, the estate tail will merge in the reversion. 3 Prest. Con. 344, 345, 
 et serf 
 
 John Chaplin, the younger, according to the views taken of the case, 
 having had a fee simple absolute, the sale and conveyance of his estate 
 transferred all his right to Benjamin Chaplin, the father of the defendants. 
 It follows that the complainants have no right in the land. 
 
 It is therefore ordered and decreed, that the bill be dismissed. 
 
 From this decree the plaintiffs appealed, and moved that it be reversed, 
 and that partition of the lands in dispute, and an account of the rents 
 and profits, be awarded to them, *conformably to the prayer of r-j^oiA 
 their bill, on the following grounds : '- 
 
 1. That an estate is never implied by construction of the words of a 
 will, when such construction would defeat the intention of the testator, 
 and lead to the entire destruction of his will : That to imply a fee sim- 
 ple conditional in John Chaplin, the younger, would if the character and 
 incidents of that estate be such as are assumed by the decree, not only 
 defeat the limitation over to William Chaplin, but render the will, even 
 as to John Chaplin, the younger, a mere nullity ; and, therefore, either 
 such estate ought not to have been implied, but the interest of John 
 Chaplin, the younger, should have been confined to an estate for life, and 
 the limitation over to William Chaplin adjudged good byway of remain- 
 der; or, if the English rule relative to the implying of estates tail, be 
 adopted and applied to fees simple conditional, then the foundation of 
 that rule ought also to be adopted, and the fee simple conditional of John 
 Chai)lin, the younger, have been adjudged a particular estate, and capa- 
 ble of supporting the limitation over to William Chaplin, as a contingent 
 remainder. 
 
 2. That if the limitation over to William Chaplin be considered an 
 executory devise, or conditional limitation, it is not too remote, being by 
 direct implication from the words of the will, restricted to take cifect 
 upon the contingency of John Chaplin, the younger, dying " without an 
 heir lawfully begotten him," living at the period of his own decease. 
 
 3. That all possibilities accompanied with an interest which are de- 
 scendible, are also deviseable ; and, therefore, the possibility of reverter 
 in John Chaplin, being accompanied with an interest in the fee, was capa- 
 ble of being devised to his brother, William Chaplin,
 
 188 SOUTH CAROLINA EQUITY REPORTS. [*274 
 
 4. That if the limitation over to William Chaplin be void one very 
 ground, yet John Chaplin, the younger, had never any alienable estate ; 
 because he never, as tenant of a fee simple conditional, acquired the right 
 of alienation by the birth of issue ; and the reverter, or possibility of re- 
 verter, being a contingent interest, did not descend upon him, but vested 
 ^.^ur-i iu such persons as were heirs-at-law of John Chaplin, the *testa- 
 
 -" tor, at the time when the contingency happened, and the estate 
 sprung into existence. 
 
 5. That the complainants being heirs-at-law of the said testator to the 
 extent of one moiety of his estate, at the time when the eontingencey did 
 ha])pen, l)y the death of John Chaplin, the younger, are entitled to par- 
 tition and an account of the rents and profits. 
 
 6. That the same eonculsion results, if the limitation over to William 
 Chapliu be held good upon any ground ; for in any case, the limitation 
 was of contingent interest, and no estate vested until the contingency 
 happened ; and the complainants were, at that time, heirs-at-law of 
 William Chaplin, in like manner as they were heirs-at-law of John 
 Chaplin the elder. 
 
 7. That the decree is, iu other respects, contrary to the rules of Law 
 and Equity. 
 
 These grounds were elaborately argued by Bailey & Pettirp-u, for the 
 ap])ellants, who cited and commented on the following authorities ; 
 Bedon v. Bedon, 2 Bailey, 2ol ; G Cruise, tit. 38, chap. 12 ; Porter v. 
 Bradley, 3 Term Rep. 143 ; Forth v. Chapman, 1 Pr. Wras. G63 ; Reed 
 V. Snell, 2 Atk. 646; Fearne (liutler's Ed.) 471; 7 T. R. 720; 1 H. 
 Black. 30; 1 Cruise, 70; Fearne, 561; 7 Cranch, 469; 3 Ves. & 
 Beames, 69 ; Co. Lit. n. 338 (o) ; 2 Black. Com. 177 ; Fearne, 366 ; 3 
 T. R. 88; Bracton, 19; 1 Coke's Rep. 66; Plunket v. Ilolmes, Lev. 
 11 ; 9 Mod. 147 ; 3 Saunders, 382 (a) note 1 ; 2 Wilson, 29. 
 
 Grimke, contra, referred to and commented on the following authori- 
 ties ; Plow. 242 ; 3 Preston, 492 ; 5 Jacob Law Die. 444 ; 2 Con. 
 Rep. 94; 3 Black. Com. 30; 2 Brest. 472; 11 Vin. 466, 6 case; 
 Cruger v. Hey ward, 2 Eq. Rep. 112 ; 
 
 O'Neall, J. I agree with the Chancellor, that the will of Benjamin 
 Chaplin, the elder, of St. Helena Parish, was sufficiently attested to pass 
 real estate, and that under it John Chaplin, the elder, took an estate in 
 fee simple, determinable on his dying under the age of twenty-one years 
 without issue. This position was settled in the case of Scanlan v. 
 Porter, 1 Bail. 427. 
 
 *2761 *Upon the other parts of the case, I propose to consider, dis- 
 -' cuss and decide, First, the doctrine upon which the decree is 
 based, that a fee conditional in the testator's heir is merged in the possi- 
 bility of reverter, which it presumes to be cast by descent upon him ; 
 Secondly, the estate which John Chaplin the younger took under the 
 will of his father, John Chaplin the elder. 
 
 1. Merger is defined to be, whenever a greater estate and a less 
 coincide and meet in one and the same person without any intermediate 
 estate, whereby the less is immediately annihilated, or is said to be 
 merged, that is, sunk, or drowned in the greater, 3 Co. Lit. (by Thomas,
 
 *276] 
 
 CHARLESTON, APRIL, 1833. 159 
 
 Am. Ed.) 655, 338 (a) note K. Taking this definition, it will be neces- 
 sary to ascertain, 1st, the nature and extent of an estate of fee con- 
 ditional ; 2d, of the possibility of reverter. It seems to be agreed by 
 all the books that a fee conditional is a fee simple. Some of them say 
 it becomes so for certain purposes, upon the birth of issue, and others, 
 that it is so before issue born. The latter is I think the better opinion ; 
 the estate is defeated if the tenant dies \vi hout heirs capable of taking 
 per formam doni ; but as long as he lives, the possibility of issue pre- 
 vents his estate from being cut down from a fee simple to a less estate. 
 If he alienes after issue is born, they cannot defeat his alienation ; for 
 they must take as his heirs or not at all, and hence they cannot dispute 
 his feofment. Littleton says, "a man cannot have a more large or 
 greater estate of inheritance than a fee simple." Upon which Lord Coke 
 remarks, " this doth extend as well to fees simple, conditional and 
 qualified, as to fee simples pure and absolute. For our author 
 speaketh of the arapleness and greatness of the estate and not of the 
 perdureableness of the same ; and he that hath a fee simple conditional 
 or qualified, hath as ample and great an estate as he that hath a fee 
 sim[)le absolute ; so as the diversity appeareth between the quantity 
 and quality of the estate." 1 Co. Lit. (by Thomas, Am. Ed.) 583, 
 18 (a;. From this it would seem, that the only difference between 
 the two estates, is as to the possibility of duration, but that as to 
 quantity they are the same. The fee is in the tenant in fee conditional, 
 subject to be divested on his death without heirs *of his body ; r^.-)Hh 
 but it is an estate which descends from him to the heirs of his L 
 body. The same doctrine is repeated in Plowden : in the argument of 
 the Sergeants, it is said, and not denied, " And as to the common law 
 before the statute, there was but then one estate of inheritance, and that 
 was a fee simple, but these fee simple estates were in two manners, the 
 one a fee simple absolute, the other conditional. The fee simple absolute 
 was, when land was given to a man and to his heirs ; the other, to the 
 heirs of his body, which was also a fee simple, but in this last estate 
 there was a condition annexed to it, that if he died without heirs, the 
 land should revert to the donor." Plow. 235. Dyer, J., speaking of 
 the fee conditional, says, " But (as I take it) it was a fee simple presently 
 before issue ; but the having of issue made it more full and perfect than 
 it was before." Plow. 250. From these authorities, it seems to be 
 clear, that the whole estate is in the tenant in fee conditional, and that 
 no estate is left in the grantor. In other words, the tenant has a fee 
 determinable upon his dying without leaving heirs of his body ; and 
 dying — leaving heirs of his body — descendible per formam doni, and 
 not generally. This view is sustained by 1 Co. Litt. 527, 22 a., and 2 
 Co. Litt. 22 141 b. note M. This brings us to inquire, what is the 
 possibility of reverter ? Is it an estate ? I think not. For it has 
 nothing like an estate about it.— It is neither a present nor future right 
 It is a mere possibility.— Upon the happening of a condition the right 
 may arise ; but until then it is nothing but the mere remembrance of a 
 condition upon which a present estate may be defeated, and a future one 
 arise in any one who may be in esse and claim as heir to the donor, la 
 the argument of Anthony Brown, one of the judges in C. B. in the case 
 of Willion vs. Berkley, speaking of the reversion under the stat. de dams
 
 190 SOUTH CAROLINA EQUITY REPORTS. [*277 
 
 conditionalibus, it is said, " For although the land should revert to the 
 donor, before the act, this is no proof that he had a reversion, for an 
 absolute fee simple shall escheat to the lord at this day, and yet the 
 lord has no reversion. So the reverter of the land to the donor upon 
 condition in law, does not prove that the donor had a reversion ; for 
 ^„_o-i indeed *he had no reversion, but the donee had the fee simple, 
 -J and consequently the whole estate." Plowd. 247. This opinion 
 of Brown, (who is described by Plowden, at page 356, to have been 
 a judge of profound learning and great eloquence,) contains the sub- 
 stance of all the learning on the subject, and shows most clearly that 
 the possibilty of reverter is not an estate. It is, as he intimates, more 
 like an escheat in possibility than any thing else. Land may escheat 
 for the want of heirs in the tenant i;i fee ; but this possibility is no 
 estate. So land may revert to the donor, on the failure of heirs of the 
 body of the tenant in fee conditional ; but until it occurs, there is 
 neither right nor possession, to be holden or inherited. It however is 
 said, it can be released. This is true, and yet it does not follow that it is 
 an estate. A condition, as was very properly said in the argument, may 
 be released, and this is exactly what is done, when the possibility of 
 reverter is released. The condition upon which the land is to revert to 
 the donor, is destroyed. 
 
 If these views be correct as to the nature of the estate of the fee con- 
 ditional and of the possibility of reverter, there can be no such thing as 
 the merger of the one in the other. For the fee conditional during its 
 continuance is the entire fee simple estate, and the possibility of reverter 
 is nothing but a mere possibility, which may or may not become an 
 estate in the donor. But the doctrine of merger is put upon the footing 
 of an implied surrender, and can therefore exist in no case in which the 
 actual surrender would not be lawful. Now, I take upon me to say in 
 opposition to the opinion of the Chancellor, for which I entertain the 
 highest respect, that there could be no surrender by the tenant of the 
 fee conditional, to him, who has the possibilty of reverter. He might 
 after issue born convey it to him, and his conveyance would carry the 
 fee, because he has the whole estate, and may grant it. Surrender is de- 
 fined to be, " a yielding up an estate for life, or years, to him that hath 
 an immediate estate in reversion or remainder, wherein the estate for life 
 or years, may drown by mutual agreement between them." 2 Co. Litt. 
 (Am. Ed.) 648. Upon this the editor remarks in note (B.) " To 
 make a surrender *good, the person who surrenders must be 
 in possession, and the person to whom the surrender is made, 
 must have a greater estate immediately in reversion or remainder, in 
 which the estate surrendered may merge " The objections arising out 
 of this law of surrender, as applied to a surrender by tenant of the fee con- 
 ditional to him who has the possibility of reverter, are — 1st. The estate to 
 be surrendered is the whole fee, and that to which it is to be surrendered 
 is no estate at all. — 2d. The person to whom the fee conditional is to be 
 surrendered, has no immediate estate either in reversion or remainder. 
 For whatever may be his interest, it is only to take eifect and commence 
 after the death of the tenant in fee conditional without issue. These 
 objections it appears to me conclude the question, so as not to admit of 
 a doubt. But in 2 Co. Litt. 651, it is said " Littleton putteth his case 
 
 *279]
 
 *279] CHARLESTON, APRIL, 1833. 191 
 
 of surrender of an estate in possession, for a right cannot be surrendered." 
 Tiie possibility of a reverter is a mere right, at most, and if it could not 
 be tlie subject of surrender, it cannot be of grant, devise or inheritance. 
 For nothing can be surrendered, which cannot be conveyed. The possi- 
 bility of reverter is this mere floating right of possibility. — It cannot be 
 any thing with which an estate can unite. But the doctrine of merger 
 cannot exist, so as to merge the fee conditional in the heir-at-law, in the 
 possibility of reverter, which, it is said, the law also casts on him. To 
 examine this as it should be, it is necessary to be satisfied, first, whether 
 there is any such thing as a descent cast of the possibility of reverter. We 
 have seen that it is no estate, and unless it is, it cannot be inherited. 
 The possibility of escheat to the lord paramount, in England, never was 
 supposed to be inheritable. It is an incident of the estate granted, and 
 upon failure of heirs, the land re-vests in the lord upon office found. In 
 the fee conditional, this land reverts and re-vests in the donor or his heirs, 
 the moment there is a failure of heirs of his body, by operation of law. 
 Until this occurs, there is nothing to inherit. If it is inheritable, then it 
 may be devised ; for, whatever is the subject of inheritance, is the subject 
 of devise. If that is so, the devise over to William is a devise *of r*28o 
 the possibility of reverter, and it would not have descended to ^ "^ 
 John, the heir and tenant in fee conditional. — But it cannot be devised. 
 For an executory devise over, after a fee conditional, is too remote and 
 cannot take effect, unless it be acccompanied with such words as will re- 
 strict the failure of the heirs of the body, to a dying without leaving 
 issue, at the death of the first taker. Mazyck v. Yanderhorst, decided 
 February Term, 1828, at this place, If it cannot be devised, it cannot 
 be inherited, seems to be the necessary consequence. 
 
 Admit the doctrine of merger, as contended for in this case, and it de- 
 stroys the estate of free conditional, whenever it is devised to the testa- 
 tator's heir at law. Such could not have been the understanding of 
 Bracton, Fleta and all the early sages of law, when they give instances of 
 fees conditional in the eldest son. If the doctrine of merger is correct, 
 they must have known that this made the estate a fee simple absolute, 
 by the union of the conditional fee and the possibility of reverter. Their 
 silence upon such a doctrine, is the strongest evidence that no such union 
 
 could take place. The case of Goodright v. 2 Wils. 29, is a strong 
 
 and direct authority against the doctrine of merger. The testator, George 
 Paynter, devised to his son, George Paynter, in the following words, "I give 
 and devise the same copyhold and freehold, hereditament and premises, unto 
 my said son, George Payner, his heirs and assigns forever ; but if he, ray 
 said son, George Paynter, shall happen to die before he shall attain his 
 said age of twenty-one years, leaving no issue living at the time of his 
 death, then I give and devise the said premises unto my said mother, 
 Catharine Paynter, and to her heirs and assigns forever." George 
 Paynter, the son and devisee, survived his grandmother, who was entitled 
 to the estate in remainder by way of executory devise ; he was her heir-at- 
 law— he died before attaining the age of twenty-one years and without 
 leaving issue. It was held by Willis, Clive and Birch, that his csta e did 
 not merge in the executory devise to his grandmother on her death and 
 the descent cast on him as her heir-at-law, but that the estates were dis-
 
 192 SOUTH CAROLINA EQUITY REPORTS. [*28l 
 
 ^„„, -, tinct — liis *determinable upon a contingency not yet happened, and 
 -• hers purely contingent and depending upon the contingency on 
 which his estate was to he defeated, and that upon his death without heirs 
 it descended to her heirs then living, and not his. If merger of an estate 
 depending upon a condition as to its duration, in the descent of another 
 estate, which depended on the determination of that estate as its com- 
 mencement, ever could apply, it would have been allowed in that case. 
 It was however there overruled, as it must be here. 
 
 2. This brings me to the consideration of the second part of the case. 
 What estate did John Chaplin, the younger, take under the will of his 
 father, John Chaplin the elder ? The words of the devise, are, " I give 
 and becpieath to my dear and loving son, John Chaplin, my tract of land 
 on Port Royal Island lying on Jericho Creek, but if he should die without 
 an heir lawfully begotton by him, then I will and devise, that the said 
 tract of land be given to my brother, William Chaplin. " 
 
 The first thing necessary to be disposed of, is the limitation over, by 
 way of executory devise, in favor of William. If that be good, then it 
 might have a material effect on the decision of the main question. But 
 if it be too remote, as I think it is, then we shall disembarrass at once 
 the case of a question which might otherwise interpose great difliculties 
 to a right conclusion on the nature of the estate to John Chaplin. On 
 this part of the case, I am spared a great deal of labor, by the case of 
 Mazyck v. Vanderhorst. (a) The words of the limitation over there, were, 
 "provided nevertheless, that should my said daughter, Elizabeth Collins, 
 depart this life leaving no lawful heir or heirs of her body, then my 
 will is that the above mentioned remainder of my estate, both real and 
 •j)ersonal, I give unto my daughter Mary Woodbury's eldest son, that shall 
 be named Josiah Collins." This Court held, " that thismust be regarded 
 as a limitation over after an indefinite failure of issue, and therefore too 
 remote and void." Tliat decision concludes the question now made, and 
 *.9QC)-| on *its authority, the limitation over here must be also adjudged 
 "'-' to be remote, and void. 
 Is the estate devised to John Chaplin, a fee conditional at the com- 
 mon law ? It is admitted, that on the face of the devise it is not to him 
 and the heirs of his body. But it is said, that the words, " but if he 
 should die without an heir lawfully begotten by him, then over to Wil- 
 liam," authorize us to imply a fee conditional. I admit, as I did in the 
 case of Bedon v. Bedon, 2 Bail. 246, that these words would, in England 
 have raised an estate tail by implication. But I deny that the same 
 words will imply an estate in fee conditional. Show me a case, if it is 
 to be found, in which such an implication has been made. None can be 
 found. The estate in fee conditional stands at common law, upon the 
 words " heirs of the body." We are then unfettered by pi-ecedents on 
 the subject, and we are free to adopt or reject the implication, as may best 
 correspond with the analogies of the law of this State. The cases under 
 the statute de donis condUionalihua, in which the Judges have, from such 
 words, implied an estate tail, do not ex vi termini compel us to adopt 
 them as authorities for the implication of a fee conditional. There the 
 implication has been resorted to, to favor the intention of the testator — 
 
 {a) Not reported.
 
 *282] CHARLESTON, APRIL, 1833. 193 
 
 here, nine times out of ten, it would be resorted to, to defeat it. The 
 ease of Bedon v. Bedon has settled the rule, that the same words which 
 in England, will imply a fee tail, will not necessarily imply a fee condi- 
 tional here ; and I am prepared now to go one step further, and to say, 
 that in no case shall a fee conditional be raised by implication. I regard 
 the whole doctrine of implied estates, where no words are used giving 
 directly to, the issue, as an interpolation of the will of the Court, for the 
 will of the testator. 
 
 The question, of what estate does the devisee take under a will, is 
 always, what estate do the words legally inform us the testator intended 
 he should take ? If we ascertain this, there is nothing generally to pre- 
 vent us from giving it effect, "When the testator uses words which show 
 an intention to contravene the law, his intention cannot* so far pre- r^Qoo 
 vail. This is the reason why devises, intended to create a perpe- L "^ 
 tuity, cannot take effect. The rule, that a limitation over must take effect 
 within a life or lives in being and twenty-one years and nine months after, 
 was intended to prevent perpetuities, and all devises are compelled to 
 bend to it. 
 
 The devise over in this case being too remote and void, can have no 
 effect to enlarge or restrict the estate, unless it be to aid us in giving 
 construction to the will, as to the estate of John Chaplin. A devise to A. 
 without words of inheritance or perpetuity, or words clearly indicating an 
 intention that he should take more than a life estate, was held formerly to 
 give only a life estate. Take this to be the rule applicable to the will 
 before us, and what estate does John Chaplin take ? I answer he takes a 
 fee simple absolute. For the testator has used words which, in legal con- 
 templation, mean that the land should not go over to the remainder man, 
 only upon an indefinite failure of issue, and then that it should not revert 
 to him. These words are equivalent to a grant of the fee to him, and as 
 much import a fee simple, as if he had used the word " forever," which is- 
 a word of perpetuity, and so are the words employed. 
 
 But strike all the words out after the words " Jericho Creek," for they 
 are void as a devise and the devise then stands simply as a devise to John 
 Chaplin without words of inheritance or perpetuity. What estate does 
 he then take ? The act of 1824 enacts, that "no words of limitation sliall. 
 hereafter be necessary to convey an estate in fee simple by devise, but 
 every gift of land by devise shall be con:^idered as a gift in fee simple,, 
 unless such a construction be inconsistent with the will of the testator, 
 express or implied." This act -settled a rule of construct which had 
 been a vexed question in our Courts ; and wills made long anterior to 
 its passage, were subjected to the rule established by it, as will l>e seen 
 by referring to the cases of Dunlap v. Crawford, 2 M'C. Ch. 171 ; Hall v. 
 Goodwyn, 4 M'C. 412 ; Smith i;. Peyton, lb. 476 ; and Bedon v. Bedon, 
 2 Bail. 231. The will, in the case of Hall v. Goodwyn, was executed I 
 think, during or before the revolutionary* war. The rule is now r-jt,.2^^ 
 regarded as a settled rule of construction — settled by the Legisla- 
 ture and the Courts, and is applicable to all wills, no matter when executed. 
 
 The case of Skimon v. M'Robcrts, 1 Wash. Rep. 125, shows that the 
 Court of Appeals of Virginia felt themselves bound to enforce the com 
 mon law in the construction of a devise without words of inheritance 
 or perpetuity contained in a will made before 1787- They seem to think 
 Vol. I.— 13
 
 104 SOUTH CAROLINA EQUITY REPORTS. [*284 
 
 that the Revolution, and the abolition of the feudal system and the rights 
 of primogeniture, might for the future relieve them from this necessity 
 and enable them to give effect to the intentions of testators. That deci- 
 sion cannot affect this case or the rule which has been adopted under 
 and since the act of 1824. The common law rule was adopted in Hall 
 V. Goodwyn, 2 N. & M'C. 383, without any reference to the effect of the 
 act abolishing the rights of primogeniture, and the same case, 4 M'C. 
 442, and Smith v. Peyton, when the common law rule was reversed and 
 the rule of the act of 1824 was adopted, put the decision on the ground, 
 that the act was declaratory of what the law was, and that it therefore 
 operated retrospectively as well as prospectively. 
 
 There is nothing in the will, either express or implied, which is incon- 
 sistent with the construction, that John Chaplin took a fee simple, and 
 this was, I think, the nature and extent of his estate under the will of his 
 father. The purchaser at the sheriff's sale purchased therefore the fee 
 simple, and the defendants claiming under him are entitled to the land. 
 The complainants' bill was properly dismissed, and the Chancellor's de- 
 cree is affirmed. 
 
 Johnson and Earle, Js., concurred.
 
 CASES IN CHANCERY 
 
 ARGUED AND DETERMINED IN THE 
 
 COURT OF APPEALS OF SOUTH CAROLINA. 
 
 (Columbia — |lTajT mxH I'unf, 1833. 
 
 JUDGES PRESENT. 
 
 Hon. DAYID JOHNSON, Presiding Judge. 
 Hon. J. B. O'NEALL. J Hon. WILLIAM HARPER. 
 
 James Poag, Executor of John Muldoon, deceased, v. William Poag. 
 
 A priviite agent or assignee is not entitled to commissions, unless they are stipulated 
 
 for ill the contract creating the agency. [*287] 
 On a bill against an agent for an account, bis books are not admissible to prove the 
 
 sale and delivery of provisions and necessaries to the principal [*287] 
 Although the agent in such case may be considered a trustee, and his tiansactions 
 
 regarded with jealousy, yet he will be entitled to credit for notes on his principal, 
 .payable to himself during his agency, without showing their consideration, unless 
 
 there be some evidence to impugn them [*287] 
 
 John Muldoon, the plaintiflfs testator, being a man of weak under- 
 standing, and incapable of transacting his own business, gave the 
 defendant a general power of attorney to act for him Under this 
 power the defendant made a settlement with a former agent, took posses- 
 sion of Muldoon's estate, and for several years managed all his affairs, 
 and during this time occasionally supplied him with provisions and 
 *other necessaries. On Muldoon's death, his executor filed this r.-|:286 
 bill for an account. 
 
 On reference before the Commissioner, the defendant claimed commis- 
 sions on the settlement with the former agent, which the Commissioner 
 refused to allow. He also produced and proved the execution of sundry 
 notes with the testator's mark to them, payable to himself, for wliicli lie 
 claimed credit, but he refused to prove their consideration. The Com- 
 missioner refused to credit him with these notes, on the ground, that it 
 was incumbent on him under the circumstances to show the consideration 
 for which they were given. The defendant then offered in cvidciice_ an 
 account book, in order to prove the delivery of certain necessaries, which, 
 as he alleged, were there charged. This evidence was rejected. 
 
 The Commissioner having made his report on the accouiits, the defend 
 ant filed exceptions to it, charging error in the above particulars.
 
 196 SOUTH CAROLINA EQUITY REPORTS. [*2S6 
 
 Chancellor Johnston, before whom the exceptions were argued, at 
 York, sustained the report, and the defendant appealed on the grounds 
 taken below. 
 
 Williams, for the appellant, in support of the grounds taken, cited and 
 relied on Sinclair v. Kiddle, decided at the last Term, and 1 Mad. 110. 
 
 Hill, contra, insisted, that commissions could not be allowed on the 
 whole amount which had been settled between the two agents, when but 
 a small sum fell due thereon, and was in fact received by the defendant. 
 That, as regards the notes, the defendant was a trustee, and not per- 
 mitted to contract with his cestui que trust ; and all contracts between 
 them should be avoided, unless the trustee shows that he has dealt fairly ; 
 and the circumstances we'll justified the Commissioner in rejecting the 
 notes. 1 M'C. Ch. 389 ; 4 Eq. Rep. 103 ; 1 Ves. 418 ; 2 John. Ch. 
 Rep. 252 ; 6 Yes. 631 ; 2 Sch. & Lef. 492. The account book was 
 properly rejected, according to the common rules of evidence. 
 
 5,j^-^QH.-i *Harper, J. The first claim on the part of defendant is, to be 
 *-' allowed commissions on the amount received from a former agent 
 on settlement. This cannot be allowed. Guardians and trustees having 
 the charge and custody of the estates of infants and minors, are allowed 
 commissions by the Act 'of 1745 ; 1 Br. Dig. 892, Executors are allowed 
 them by the executor's act, and factors and some other commercial agents 
 have them by the usages of trade. But a private agent or assignee is 
 not entitled to them unless they are stipulated for in the act or contract 
 by which the agency is created. To this efiect was the decision in the 
 
 case of decided by this Court in Charleston, and that of 
 
 Muckenfuss v. Heath, ante, 182, decided at the same place during the 
 last sitting of this Court. 
 
 The next question relates to the admissibility of defendant's book, to 
 establish an account for articles sold and delivered to his principal, 
 Muldoon. This certainly does not come under the general rule allowing 
 merchants', shopkeepers' and tradesmens' books to be evidence. It is 
 supposed to l)e admissible under the decision in the case of Sinclair & 
 Kiddell v. The administrators of Price, decided at this place in Decem- 
 ber, 1832. That was a peculiar case depending on its own circumstances. 
 There was a mercantile agency for the purpose of selling goods, remitting 
 the proceeds, &c., stress was laid on the circumstance, that the books 
 would have been evidence for the principal against third persons, (which 
 cannot be said here) and the books were offered after the death of the 
 agent, who might have been able to produce other proof if he had been 
 alive. As to this ground also the motion must be dismissed. 
 
 We are of a different opinion with respect to the notes which were 
 offered in evidence. It is certainly true that a trustee cannot purchase 
 of his cestui c/ue trust, without being prepared to show that he gave a 
 full consideration, and did not unfairly avail himself of the advantages 
 afforded by his character of trustee. The same rule is applied to other 
 persons, not being strictly trustees but standing in relations of confidence, 
 as to agents. But these persons are certainly at liberty to account with 
 5i..inn-| their principals, and to take acknowledgments* or vouchers in 
 - relation to the transactions between them. A note given is evi-
 
 ^288] 
 
 COLUMBIA, MAT, 1833. 197 
 
 clence of an account settled and a balance ackuowledg-ed. In such a 
 case as the present, where the principal is shown to have been a weak 
 man, hardly capa'jle of transacting his own business, such transactions 
 are regarded with jealousy, as in the instance of a guardian scttlinii- with 
 his ward just after he comes of age, and slight evidence will be sufficient 
 to throw the burden of proof on the agent. But I see no evidence to 
 impugn the notes in this case. On the contrary they are supported by 
 the testimony of the witness, Jos. S. Poag, who proves the delivery of 
 various articles by the defendant to Muldoon, without being able to 
 specify quantities What conclusion so obvious, as that on account of 
 these the notes were given. And this is an additional reason against 
 admitting the book to prove the account. T^otes were given to the num- 
 ber of five, during the continuance of defendant's agency, at various 
 times, and the presumption is, that defendant's charges against his prin- 
 cipal were included in these notes. The motion as to this ground of 
 appeal is granted, and defendant's third exception sustained. 
 
 Johnson and O'Xeall, Js', concurred. 
 
 Thomas M'Meekin v. J. L. Edmonds and Wife, Robert L. Nance, 
 
 AND ClOUGH S. MeNG. 
 
 A sheriff's sale of a tract of land to one who purchased at the instance of the debtor 
 in tlie execution, and conveyed to a trustee for the benefit of the debtor's famil.y, 
 under the circumstances set aside; but the mother of the debtor's wife having 
 advanced money towards the purchase, and which went to the payment of his 
 debts, and the trustee having afterwards paid out money in di-charge of a mort- 
 gage, to which the land was subject wlien sold, and neither of them having Ijeon 
 accessory to the fraud, the Court held that the money thus advanced should be 
 refunded, and that the land should stand as security for the payment. [*:iy:^] 
 The fraud of a third person may sometimes vitiate a conveyance — a party to the 
 conveyance shall not be allowed to derive any advantage from such fraud; but in 
 setting aside such a conveyance, the Court will take care that iunoceut persons 
 shall not suffer. [*293] 
 Equity will entertain jurisdiction to set aside a fraudulent deed. [•■-2^'5] 
 Where the Court of Equity by a decretal order directed the lesiacy of the wife for 
 which a decree had been obtained, to be settled to her separate use, kc, according 
 to the trusts of the will, this is not a marriage settlement which need be recorded: 
 and a deed afterwards executed to the wife's trustee, is not void because not 
 recorded as a marriage settlement. [*295] 
 
 The bill in this case was filed to set aside, as fraudulent, a sale and 
 conveyance bv the sheriff, of a tract of land of the defendant, J^ L. 
 Edmonds, to the defendant, C. S Meng ; and also a conveyance trom 
 Meng to the defendant, R. L. Nance, in trust for the use of Mrs. Ed- 
 monds and her children, under the following circumstances, as proved on 
 
 the trial : i -n r i l 
 
 Mrs. Edmonds being entitled to a legacy, under the will ot licr gianu- 
 father, she and her husband instituted proceednigs^-_in h-qnity, r::-.^^^ 
 and obtained a decree therefor; but Edmonds l)eing largely 
 indebted and likely to prove insolvent, the Court of Equity, by a decretal
 
 198 SOUTH CAROLINA EQUITY REPORTS. [*289 
 
 order, in June, 1826, directed the amount of Mrs. Edmonds' legacy to 
 be paid to R. L. Nance, in trust, to be laid out in the purchase of pro- 
 perty for the use of Mrs. Edmonds and her issue, and for such other 
 uses and under such limitations as the will directs. Shortly after, the 
 greater part of Edmonds' estate was sold under executions, at Newberry. 
 Besides the property then sold, he owned a tract of land in Union Dis- 
 trict, which he had contracted to one Thomas Clarke for $2,400, $100 of 
 •which he had received, and taken notes for the balance, and given his 
 bond for titles. On the sale day in September, 1826, this land being 
 exposed for sale by the sheriff under executions in his oiBce, Edmonds 
 applied to the defendant, C. S. Meng, who had been recommended to 
 him as a man of probity, to purchase the land as an agent, saying that 
 he had money to satisfy all the executions in the sheriff's office against 
 him, and that his ol)ject in getting him (Meng) to purchase the land, was 
 to enable him to perform the contract with Clarke, by tendering him 
 through the purchaser, sheriff's titles. On this representation, Meng 
 consented to act, and accordingly bid off the land at $920. He then 
 paid the sheriff $128 7.3i in satisfaction of the executions against 
 Edmonds, from money which Edmonds gave him ; and Edmonds then 
 gave him a receipt for $191 2Gf, the balance of the bid after satisfying 
 the executions, and which would be coming to Edmonds, but no money 
 was paid ; and the sheriff executed titles to Meng, for which Edmonds 
 paid. After the titles were delivered, Meng, who felt no interest in the 
 matter, at the instance of Edmonds gave a bond to execute titles for the 
 land, to R. L. Nance, the trustee of Mrs. Edmonds ; and shortly after- 
 wards executed a formal conveyance. This deed has since been approved 
 of by the Commissioner in Equity for Newberry District, and accepted 
 in execution of the previous order of the Court. At the time of the 
 *9Qm sheriff's sale the land was under mortgage to one Darby from 
 -I *whom Edmonds purchased it, for the purchase-money, the 
 balance of which then due was $604 91. Mr. Nance, the trustee, has 
 since paid this sum, and disencuml>ered the land of the mortgage lien. 
 
 Edmonds, in his answer, states that he received no money from Meng, 
 and that he was of the opinion that the mortgage was to be satisfied out 
 of the proceeds of the sale. Mrs. Wadlington, the mother of Mrs. 
 Edriioncls, it appeared, had advanced $200 to Edmonds, to aid in this 
 purchase, of which, however, only $128 1o^ were applied to that 
 purpose. 
 
 Some months after the sale of the land, judgment was obtained and 
 execution lodged against Edmonds in favor of Nancy Hamilton, who 
 assigned the same to the present plaintiff for a valuable consideration. 
 On this judgment the land was again sold by the sheriff in June, 1827, 
 and purchased by the plaintiff; and in July following Edmonds was 
 arrested on a ca. sa., and having rendered in a schedule, was discharged 
 under the Prison Bounds' Act, leaving the plaintiffs' judgment wholly 
 unsatisfied. 
 
 The case came to a hearing before Chancellor DeSatjssure, at Union, 
 June Term, 1832 
 
 For the plaintiff, it was argued, that the sale was intended to defraud 
 creditors, and should be declared void ; and it was further contended, on 
 the authority of Price v. White, Law Journal, 296, that the order of the
 
 *290] COLUMBIA, MAY, 1833. 199 
 
 Court, appointing Nance a trustee, and settling the property on Mrs. 
 Edmonds, was a post nuptial settlement, and not being recorded in due 
 time, nor in the proper office, was void as to creditors. 
 
 The Chancellor held, that the evidence did not establish fraud in the 
 sheriff's sale, and the subsequent conveyance to the trustee ; that this 
 was not a case to which the registry acts applied, the property not being 
 derived in such way as to be liable for the husband's debts, unless pro- 
 tected by a settlement ; but the decretal order of the Court settling the 
 property on Mrs. Edmonds, is merely ancillary to the will which creates 
 the trusts, and intended to give it effect. He therefore dismissed the bill 
 with costs. 
 
 From this decree the plaintiff ajipealed, and moved to reverse it, for 
 error in the decision of the Chancellor. 
 
 */?. M. Pearson, for the appellant, commented on the facts, r^gni 
 which he insisted shewed a fraudulent intent on the part of Ed- L 
 monds to screen his property from his creditors by procuring the sheriff's 
 sale : Miller v. Tolleson, Harp. Eq. Rep. 145. That if Mrs. Wadling- 
 ton advanced money, she did so without any contract with the trustee, 
 and even without his knowledge — she could not recover from him, and 
 was not entitled to have it refunded out of the land, but stood in the 
 relation of any other creditor of Edmonds, to whom she had loaned it : 2 
 IS". & M'C. 75. Nance, the trustee, was not a purchaser at the sheriff's 
 sale. He knew nothing of it until some time afterwards, when he accepted 
 the title. Meng was not his agent, but Edmonds' ; and if Edmonds had 
 authority to act for the trustee (which does not appear) he could not 
 delegate his authority to Meng; 16 Ves, 45; Newland, 145. The pur- 
 chase at sheriff's sale, cannot therefore be regarded as the act of the 
 trustee in execution of his trust. — That the land was sold subject to the 
 mortgage, he referred to 4 M'C. Rep. 33G ; the overplus, after satisfying 
 the executions, was Edmonds'. And that the settlement by the Court 
 Avas void, for want of being recorded, he relied on Price v. White, Law 
 Journal, 296. A. A. 1823. 
 
 Irhy, for the defendant, also commented on the facts, and contended 
 that the evidence did not make out such a case of fraud as to justify the 
 interference of this Court ; and that if the Court did set aside the sale, it 
 would direct that the land should stand charged with the money advanced 
 by Mrs. Wadlington expressly for this purpose, which went to satisfy the 
 executions against Edmonds, and with the amount paid by the trustee ia 
 discharge of the mortgage; 1 Eq. Rep. IIT, 419. 
 
 J. J. Caldwell in reply, insisted that nothing but the equity of re- 
 demption was sold at the sheriff's sale ; or more properly according to 
 our law, the land was sold subject to the mortgage, and the purchaser 
 took it with that incumbrance. According to this view there remained 
 of the purchase money, after satisfying the executions against Edmonds, 
 *$t91 26 of an overplus, which belonged to Edmonds and was r:i.292 
 applicable to his debts. To this extent, at least, the Court should mi- 
 grant relief, and a resort to the laud is the only mean of obtaining it. 
 
 Harper, J. I think the sale by the sheriff to the defendant, Mong, 
 must be regarded as fraudulent so far as the defendant Jeflerson L. 
 Edmonds was concerned. The land was sold subject to a mortgage oa
 
 200 SOUTH CAROLINA EQUITY REPORTS. [*292 
 
 which $604 were doe. It was bid off at $920. The price then bid for 
 
 it was, in effect, $1524. Edmonds however gave his receipt for $791 26 
 and I thinli must be regarded as having paid so much of the price out of 
 his own funds, and that it was to this extent a voluntary conveyance for 
 the benefit of his family. It is true that Edmonds states in liis answer, 
 that he and the bidders at the sale were under the impression that the 
 mortgage was to be paid off out of the proceeds of the sale, and that 
 though he gave his receipt, the amount was in fact paid by the trustee 
 Nance ; but the answer of Edmonds is no evidence for this purpose ; 
 there is no charge on the suliject in the bill. He himself knew of the 
 mortgage ; Meng was his agent for making the purchase, and must be 
 regarded as having had notice, and the conclusion of law is, that he pur- 
 chased only the equity of- redemption, as we term it — in fact, the legal 
 estate remaining in the mortgagor, taking the land still subject to the 
 mortgage. But if we were to take the statement of Edmonds for granted, 
 there still remains a portion of the price which he must be regarded as 
 having paid. His receipt to Meng was for $191 26|; the amount due 
 on the mortgage was $604 ; there was then $184 26 for which he volun- 
 tarily gave his receipt. If he had actually received the $791 26, it might 
 have been applied to the benefit of creditors, and it was a fraud on them 
 that so mnch of his property should be applied to benefit his family, and 
 in effect himself. Other circumstances seem to indicate that he wished 
 his family to obtain an undue advantage at the expence of creditors. If 
 he could have enforced his contract with Clarke, (and there is no clear 
 evidence to show that he could not) it would have been a much more 
 *9q£Jl ^advantageous sale than that which was effected, *and he seems to 
 -' have misrepresented to Meng the purpose for which he wished him 
 to bid off the land. It is possible he may have intended fairly ; but the 
 law draws a different conclusion from the circumstances ; and though 
 neither the trustee nor his cestui que trust, Mrs. Edmonds, may have had 
 any accession to the fraud, they are not allowed to keep an advantage 
 gained by the fraud of another. Huguenin v. Basely, 14 Yes. 273. 
 
 It is not alleged on any hand, that either Nance or his cestui que trust 
 have any accession to the fraud. The trustee purchased bona fide, and 
 for valuable consideration, for he paid oft' the mortgage. He may have 
 supposed that the land had been bid off for a nominal price, and that the 
 amount of the mortgage was the only consideration to be paid. In gene- 
 ral, the title of a bona fide purchaser for valuable consideration without 
 notice of fraud, is good both in law and ecpiity ; but in this case I am of 
 opinion that though the title of the trustee was good at law, and therefore 
 the complainant took nothing by his purchase at sheriff's sale, yet it must 
 be set aside in equity, though allowed to stand as a security for what has 
 actually been paid. In the case of Smith v. Henry, 1 Hill, 26, decided at 
 the last sitting in this place, we recognised the general principle, that the 
 fraud of the grantor alone is sufficient to vitiate a conveyance ; and, as I 
 have said, the fraud of a third person in procuring a conveyance, may 
 vitiate ; but in neither of these instanees, is such construction to be made, 
 as will render innocent third persons sufferers. In general, if a purchase 
 be made bona fide, ?i\\(i for valuable consideration, the Court will not look 
 to the adequacy of the consideration But here, as I have said, the 
 whole of the consideration was not paid by the trustee ; part of it was
 
 *293] COLUMBIA, MAY, 1833. 201 
 
 paid by Edmonds ; though, for aught that appears, without tlio trustee's 
 knowledge. If an insolvent having saved a thousand dollars in money 
 from the wreck of his fortune, should go to a third person and say " if you 
 will sell to my wife's trustee a tract of land worth $2,000 for $1,000, I 
 will privately make up the difference," it is plain the transaction could 
 not stand. Otherwise there would be no restraint on fraud. But the 
 grantees *being themselves innocent, are not to be made sufferers, r^k.^f,. 
 The ends of justice can only be answered by setting aside the sale, L ^•^■* 
 allowing the property to stand as a security for what was actually paid. 
 But the sale was good at law. The purchaser having paid a valuable 
 consideration, bona fide, could not be affected at law; the jury must find 
 the deed good or bad, and could not decree that it should be avoided, on 
 the repayment of what had been advanced. This is an answer to the 
 question of jurisdiction, which has been raised in the case. The com- 
 plainant would have had no relief at law. 
 
 In several English cases, even where the defendant appears to have 
 been a partaker of the fraud, but the proof was not entirely clear, the 
 Court has set aside the conveyance, decreeing it to stand as a security for 
 the money actually paid. Heme v. Meeres, 1 Vern. 465, was a case of 
 this sort. The Chancellor says " and so at law, where a case is found to 
 be fraudulent, the creditor comes in and avoids it all, without repayment 
 of any consideration money ; and in Equity, therefore, where the Court 
 can decree back the principal and interest, there is no hurt done ; and a 
 lesser matter in such case, will serve to set a conveyance aside." Addison 
 V. Dawson, 2 Vern. 618, and Clarkson v. Han way, 2 Pr. Wms. 203, 
 were cases in which upon setting aside the conveyance, the Court decreed 
 the defendants to be refunded what they had actually paid. In Boyd v. 
 Dunlap, 1 Johns. Ch. Ca. 418, where the consideration was very inade- 
 quate, but the proof of actual fraud in the defendant doubtful, tlie Court 
 set aside the conveyance, allowing it to stand as a security for the money 
 actually paid. Chancellor Kent, says " Courts of law can hold no middle 
 course. The entire claim of each party must rest and be determined at 
 law, on the single point of the validity of the deed ; but it is an ordinary 
 case in this Court, that a deed, though not absolutely void, yet if obtained 
 under inequitable circumstances, should stand as a security for the sura 
 really due." Jn How v. Weldon, 2 Yes. 516, though there was actual 
 fraud, dolus in re ipsa, as the master of the rolls expresses it, the deed 
 was allowed to stand as a security for the money paid. I *think, rst^og^ 
 however, that our Court of Equity was right in determining, in '- 
 the case of Miller v. ToUeson, State Eq. Rep. 145, that where the de- 
 fendant was a partaker of the fraud, he should not be allowed to derive 
 any advantage from the conveyance ; and therefore, where it was made to 
 secure a previous debt, it should be set aside absolutely. 
 
 The conveyance being good at law, the complainant took nothing liy 
 his purchase at sheriff's sale. Creditors had an equity to set the convey- 
 ance aside ; but if it had been the defendant's equity, it was not a sub- 
 ject of levy and sale by the sheriff. He can only sustain his bill as a 
 creditor, and we understand there are other creditors who have a legal 
 priority over him, of which we are not authorized to deprive them. 
 
 In addition to what I have said on the subject of jurisdiction, it may 
 be observed, that although the rule be that the title to freehold shall not
 
 202 SOUTH CAROLINA EQUITY REPORTS. [*295 
 
 be tried in this Court, yet tlie Court has jurisdiction of fraud ; and noth- 
 ing is more common than that parties should come into this Court to set 
 aside a fraudulent deed, preparatory to a trial at law. This is an appli- 
 cation to set aside a fraudulent deed. If that deed were out of the way, 
 there is no dispute about title — both parties concur in the title of Ed- 
 monds, and claim under him. 
 
 In addition to the money paid on the mortgage, I think the land must 
 stand as a security for the money advanced by Mrs. Wadlington towards 
 the purchase. She states positively that she did advance this money, in- 
 tending it as a gratuity to her daughter, and I see nothing in the evidence 
 to contradict her. She states indeed that she advanced $200 ; but it 
 does not appear that Edmonds applied more than $128,73^ towards the 
 purchase. These sums, however, must be reimbursed without interest ; 
 Mrs. Edmonds having received the rents and profits of the laud. 
 
 With respect to the question, whether the conveyance to Nance is not 
 a marriage settlement, and therefore void for want of recording, I can- 
 not see how it can be regarded as such a settlement. The former decree 
 of the Court was intended to carry the will into effect, and as 
 *29r"l o^^s^'^^^cl* by the Chancellor, a will is not a marriage settlement. 
 -^ The deed is not supported by the marriage consideration, nor by 
 the wife's equity which results from the marriage, as in the case of Price 
 V. White. If we should regard every conveyance of a husband to the 
 use of his wife, as a marriage settlement, this would not come under that 
 description. In legal contemplation, it was a purchase from a third per- 
 son by a trustee, for the use of his cestui que (rust. The conveyance to 
 Meng was certainly not a marriage settlement. The same transaction 
 might have happened, though Mrs. Edmonds had been unmarried, and 
 Jefferson L. Edmonds a stranger to her. 
 
 As there are older judgments against Edmonds than that of complain- 
 ant, and as it may be that he has been prosecuting for the benefit of 
 others, and will derive no advantage from the decree, it would, in that 
 event, be inequitable, if other creditors should obtain benefit from the 
 decree, that he should be charged with costs. 
 
 It is therefore ordered and decreed, that the decree of the Chancellor 
 be reversed ; that the land in question be sold by the Commissioner, and 
 that out of the proceeds he pay, in the first instance, the sam of $732.73 
 to the defendant, Robert L. Nance, as trustee, and the surplus to the 
 creditors of the defendant, Jefferson L. Edmonds, according to their 
 legal priorities ; and that he advertise for creditors to come in and estab- 
 lish their demands. Parties to pay their own costs ; provided, that if 
 there be a surplus received by creditors, the complainant's costs shall be 
 paid by the creditors so receiving, in proportion to the sums received by 
 them respectively. 
 
 Johnson, J., concurred. 
 
 O'Neall, J., having been of counsel in this case, gave no opinion.
 
 ^297] COLUMBIA, MAY, 1833. 203 
 
 * John Brown, and otliers, v. Wm. K. M'Donald. [*297 
 
 If an executor or admiinstrator find the affairs of the estate so complicated as to 
 render the administration difficult and unsafe, be may institute proceedings in 
 Equity against all the creditors to have their claim adjusted by the Court, and to 
 obtain its judgment for hi^ guide. There is no difference in this respect between 
 an executor and administrator. [*-'j01] 
 
 The general rule is that a creditor must first obtain a judgment at law before he 
 can ask relief in Equity; but this rule applies only where the Cou. t is called to 
 aid a creditor in furtherance of his legal remedy; it has no application when the 
 Court is asked to give effect to its own judgment. And therefore, where on a 
 bill by an administrator against creditors to marshal the assets &c., an injunction 
 was obtained restraining proceedings at law and creditors came in and established 
 their demands; this is a judgment of the Court of Equity: and if the creditors 
 afterwards file their bill to set aside certain conveyances by the intestate as 
 fraudulent, and it appears from the bill that they have no remedy at law, they 
 will be entitled to relief in Equity. [*o01] 
 
 A general prayer in the bill fur relief, will authorize a decree for the specific relief 
 appropriate to the case. [*302] 
 
 It is not indispensably necessary to establish fraud in a deed, that the grantor was 
 indebted at the time of its execution, or that it was executed with a view to 
 future indebtedness; it may be avoided by showing that the sale was merely 
 colorable. [*303] 
 
 Where the grantor, being indebted, conveyed his land to his mother, for a valuable 
 consideration, which was paid and applied to his debts, and it was agreed at the 
 time, that he should retain possession of the land during his life, and it should 
 go to his children on his death, and he did hold possession, and the grantee 
 afterwards devised the land to the grantor's children: the conveyance was held 
 to be fraudulent as to creditors, and set aside. [*304] 
 
 Convej-ance of land set aside as fraudulent against creditors, but the grantee in- 
 tending no actual fraud, having paid the consideration and applied 'it to the 
 payment of the grantor's debts, and afterwards devised the land, the Court 
 ordered the money actually paid to be refunded to the devisee, and the deed to 
 
 ^ stand as a security for it. (a) [*305] 
 
 Quere, whether a promise by a parent indebted at the time, to pay an infant for his 
 services, will support a deed against the other creditors? [*305] 
 
 Where negroes were purchased and paid for by a debtor, and the title made to his 
 sons, under the circumstances it was held, that a trust resulted to the debtor in 
 favor of creditors, and the negroes were held liable for his debts. [*3U6] 
 
 The bill in this case was filed by the plaintiffs, as creditors of Thomas 
 M'Donald, deceased, to set aside certain conveyances of land and slaves, 
 and to subject them to the payment of their demands ; and also for an 
 acconnt of the rents and profits, to be applied to the same purpose. 
 
 The late Thomas M'Donald, the father of the defendant, being embar- 
 rassed in his circumstances, in September, 1811, executed a deed for a 
 tract of seven hundred acres of land, in Lancaster District, whereon he 
 resided, to his mother, Mrs. Charlotte M'Donald, purporting to be in 
 consideration of $1000. The deed was delivered to Mr. Massey, tor 
 safe-keeping — was recorded in 1814, and not given up to the party until 
 after the death of Thomas M'Donald. When the deed was executed, 
 Thomas M'Donald was indebted to his father's estate $300. Mrs. 
 M'Donald took this debt on Thomas, in part of Her share of her lius- 
 band's estate, to go in part payment of the land, and paid the remaining 
 
 (a) See also M'Meekin v. Edmonds, ante, 
 
 288.
 
 204 SOUTH CAROLINA EQUITY REPORTS. [*297 
 
 seven hundred dollars to him and his creditors. It appeared also to be 
 the nnderstandine: at the time, that Thomas M'Donald should retain pos- 
 session during his life, and that the land would then g'o to his children. 
 Thomas M'Donald did remain in possession of the land, and enjoyed it 
 as before, without paying- rent, and in all respects acted as the owner, 
 until his death, in 1828. The value of the land, with the ferry, was esti- 
 mated by the witnesses, at from three to five thousand dollars. 
 
 Mrs. Charlotte M'Donald died in August, 1812, leaving a will by 
 which she devised and bequeathed the land in question, and five slaves, to 
 her son, Thomas M'Donald, for twenty years, and then to be equally 
 divided anrong his children, of whom the defendant is the only survivor. 
 The land was subsequently sold by the sheriff, for fifty dollars, as the 
 property of Thomas M'Donald ; the titles were executed to the defend- 
 ant and his deceased brother, but the consideration paid by Thomas 
 M'Donald. The defendant, Wm. K. M'Donald, generally resided with 
 j^jjQj,-, his father until the death of the latter, *and acted for some time 
 -I on his own account, and a part of the time as an overseer for his 
 father ; he claimed four horses as his own, but it was admitted that he 
 had no other means of obtaining property than by his own industry. On 
 his father's death, in 1828, he took possession of the premises, received 
 the crop of that year, and has had possession ever since. He was not of 
 age until the year following. 
 
 As regards the negroes, Rachel and her children, which the plaintiffs 
 seek to make liable to their debts, it appears that they were purchased 
 and paid for by Thomas M'Donald, in 1827, but the bill of sale was exe- 
 cuted to the defendant and his brother, (since deceased.) These negroes 
 remained on the plantation, in Thomas M'Donald's possession, until his 
 death, when they went into the defendant's possession For the purpose 
 of sho.wing the fraudulent intent of Thomas M'Donald, the plaintiffs 
 proved that in 1819, he executed a deed to the defendant and his brother 
 for nine slaves, who continued afterwards in his possession. They are 
 not now in dispute. 
 
 Since 1811, Thomas M'Donald was generally embarrassed, and finally 
 died insolvent. After his death, his administrator filed a bill in equity 
 to marshal the assets, and to enjoin creditors from proceeding at law, 
 and compel them to come in and establish their debts against the estate. 
 An injunction was obtained, and the plaintiffs, among other creditors, 
 established their demands before the Commissioner, but they have not 
 obtained judgments at law 
 
 The case was heard by Chancellor De Saussure, at Lancaster, July, 
 1832. 
 
 The Chancellor held that the conveyances of the land were fraudulent ; 
 that Thomas M'Donald having paid for the negroes, Rachel and her 
 children, a resulting trust was created to him, to which his creditors were 
 entitled. His Honor, therefore, set aside the conveyances, and decreed 
 the land and negroes liable to the claims of the creditors, and that the 
 defendant should account for the rents and profits, from which any sum 
 he might appear entitled to by the report of the Commissioner, for his 
 services as an overseer, should be deducted. From this decree the de- 
 fendant appealed, ou the following grounds :
 
 *299] COLUMBIA, MAY, 1833. 205 
 
 *1. That the deed from Thomas M'Donald to his mother was r^^^n 
 not fraudulent, inasmuch as Thomas M'Donald at that time pos- L -^^ 
 
 sessed property more than sufficient to pay all his debts, besides land 
 
 that the sale of the land nearly paid all his debts at that time, nor was 
 there proof of his indebtedness for several years after. And the consid- 
 eration of the deed having been fully paid, and there being no intention 
 to defraud creditors, the deed should have been sustained. 
 
 2. That although Rachel and her children were paid for by Thomas 
 M'Donald — it was also proved, that he was indebted to the defendant for 
 his services, and for that reason the Court should have decreed in favor 
 of the defendant's title. 
 
 3. That the defendant, not being a party to the bill filed by the admin- 
 istrator of Thomas M'Donald, against the creditors, should not be bound 
 by the proceedings in that case ; nor should the plaintiffs derive any ad- 
 vantage from them, as against the defendant. 
 
 4. Tiiat the plaintiffs should have established their demands by judg- 
 ments at law, before asking this Court for relief, and without which this 
 Court has no jurisdiction. 
 
 5. That the plaintiffs' bill does not pray to set aside the deed from 
 Thomas M'Donald to his mother, and no such relief should therefore have 
 been granted. 
 
 WUliams, for the appellant, contended, that a creditor cannot ask the 
 aid of this Court without having first obtained a judgment at law, 
 Screven v. Bostick, 2 M'C. Ch. 410-16. Establishing tlie debts in the 
 Court of Equity, would not be a compliance with the rule, and it might 
 be questioned whether an administrator could file a bill to marshal the 
 assets, and to compel creditors to come in and establish their debts, what- 
 ever an executor might do. And on the facts, he insisted, that the trans- 
 actions on the part of Thomas M'Donald were not fraudulent, the sale of 
 the land being for a valuable consideration, which was fully paid, when 
 there was but slight indebtedness — and that the title of the negroes was 
 vested in the defendant, in consideration* of his services, which r^oQQ 
 were proved to have been rendered ; and the answer of the defend- ^ 
 ant is conclusive in this respect. 
 
 Blanding, contra, argued, that the case of Screven v. Bostick, 2 M'C. 
 Ch. 410, only decides that a creditor shall not ask the aid of the Court of 
 Equity, until he has exhausted all the means at law ; but the bill by the 
 administrator prevents the plaintiff from proceeding at law. He com- 
 mented on the facts, to show that the transactions were fraudulent as to 
 creditors, and cited and relied on Smith v. Henry, 2 Bailey, 118, and S. 
 C. 1 Hill, 16. 
 
 Clarke, in reply. As to the right of an administrator to file a bill 
 against creditors to establish their demands, and to marshal assets, cited 
 Tollor's Executors, 450. As to the fraud, he contended that the transac- 
 tions were bona fide, and that the circumstances of the case could not 
 warrant the conclusion in either a legal or moful point of view ; and 
 cited and commented on 1 M'C. Ch. 251 ; 4 M'C. 294 ; 1 M'C. 227 ;_1 
 Eq. Rep. 348. And whatever might be the conclusion of the Court m 
 this respect, the Court should allow the defendant for the luoney actually
 
 206 SOUTH CAROLINA EQUITY REPORTS. [*300 
 
 advanced by Mrs. M'Donald to the payment of Thomas' debts. Xewland 
 on Con. 352. 
 
 O'Neall, J. Preliminary to the discussion of this case on the merits, 
 it was contended : 1st. That the proceedings in the case of the adminis- 
 trator of Thomas M'Donald against his creditors were irregular, and that 
 therefore the decree establishing the debts of the plaintiffs could not be 
 regarded as a judgment. 2d. That the plaintiffs could not maintain this 
 bill, inasmuch as they had not recovered judgments at law, sued out exe- 
 cutions and pursued the estate of their debtor to insolvency. It will be 
 necessary to dispose of these objections before proceeding to consider the 
 case on the merits. 
 
 1. I had supposed thai an administrator or executor had an unques- 
 tionable right, when they found any difficulty in the administration of the 
 estate, to Ijring the whole matter with all the parties interested therein, 
 *qmi ^^ the view of the Court of Equity,* and obtain its judgment 
 
 -I for his guide. But it seems that doubts are entertained by coun- 
 sel as to the correctness of this practice. Toller, in his law of executors, 
 455, relied on as authority in the argument of defendant's counsel, says, 
 "if the executor find the affairs of the testator so complicated as to ren- 
 der the administering of the estate unsafe, he may institute a suit against 
 the creditors for the purpose of having their several claims adjusted by 
 the decree of the Coui't." This was not denied to be law, but a distinc- 
 tion was attempted to be made between executors and administrators ; 
 the rule was conceded in the case of the former, but denied in the latter. 
 There is, however, no such distinction, both have the same remedies, and 
 both are properly accountable in Equity. I think, therefore, that the 
 first objection cannot avail the defendant. 
 
 2. The general rule in Equity seems to be, that a creditor, to entitle 
 himself to relief, must not only have recovered a judgment at law, but also 
 must " show that he has proceeded at law to the extent necessary to give 
 him a complete title " Brinkerhofif v. Brown, 4 J. Ch. Rep. 67] ; 
 Screven v. Bostick, 2 M'C. Ch. Rep. 410. But this general rule applies 
 solely to cases where the Court is called on to aid a creditor in further- 
 ance of his legal remedy. It has no application where the Court is 
 called on to aid a creditor in giving effect to its own judgment. There 
 the only questions are, has the Court jurisdiction on the matters charged ? 
 and without some further decree is the creditor without an effectual 
 remedy ? In the language of Judge Nott, in the case of Bostick v. 
 Screven, the plaintiffs must show that their decree " cannot be enforced 
 without the aid of the Court of Equity" against this defendant. They 
 have undertaken to do this, and have I think succeeded. It appears 
 from the proceedings had in the case of the administrator of Thomas 
 M'Daniel, against the present complainants and others, creditors of the 
 said Thomas, that their debts were established as simple contracts, and 
 that the administrator had in his hands assets to the amount of $446.35 
 applicable to specialities. This is a judgment of the Court of Equity, 
 entitling the plaintiffs to payment, but at the same time declaring that 
 *3021 ^'^^'^ "^^^'^ ""^ *assets in the administrator's hands for payment. 
 
 "-^ It is analogous to a judgment at law, of assets quando acciderin 
 on the plea oi plene adminidravit. In such a case it would not be pre-
 
 *302] 
 
 COLUMBIA, MAT, 1833. 207 
 
 tended that an execution would be necessary to complete the plaintilPs 
 title to relief in Equity. It is true there may be real estate, and if the 
 bill was silent in that respect it might constitute a reason why Etmiiy 
 should not interfere. But it is expressly alleged by the comphiiiu\i\ts 
 and admitted by the defendant, that the whole real estate of 'J'homas 
 M'Donald, before his death was sold at sheriff's sale under execution, 
 and titles executed to the defendant and his brother now deceased, and 
 that the purchase money was paid by the said Thomas. According to 
 this allegation and admission, there was no real estate of the said 
 Thomas which could be made available by execution without the aid of 
 this Court. The legal title was in the defendant, and the equitable title 
 in the said Thomas. This, as well as the fraud in the title which the 
 defendant derived from Charlotte M'Donald in the same land, and the 
 fraud and the resulting trust in the slave Rachel and her children, not 
 only showed most satisfactorily that the plaiutifls could have no remedy 
 by execution, but also that the Court of Equity had jurisdiction of the 
 case, and was l)ound to relieve the plaintiff's if the fraud and resulting 
 trusts were established. 
 
 This brings us to consider the right of the plaintiff's to have a decree 
 made, declaring liable to the payment of the debts, 1st, the land, and 
 2dly, the slaves, Rachel and her children. As to the land, it is objected 
 that the complainant has not prayed that the deed from Thomas 
 M'Donald to Charlotte M'Donald, should be set aside. The fact that a 
 party does not pray for the specific relief appropriate to his case, is no 
 ground of objection to a decree in his favor, provided his bill contains a 
 general prayer for relief, and the relief decreed arises out of the case 
 made by the pleading. Tlie bill sets out the sale and conveyance of the 
 land in dispute, by the sheriff of Lancaster District, for $50, to the de- 
 fendant and his brother now deceased, and alleges the said consideration 
 was paid by Thomas M'Donald, who was then deeply indebted ; and 
 
 prays that the said sale *and conveyance may be set aside, and 
 
 [*303 
 
 the land be decreed to be sold for the payment of the debts of the 
 said Thomas. The defendant admits this case of the complainants, and 
 to avoid it sets up an antecedent conveyance of the land, by Thomas 
 M'Donald, to his mother, Charlotte M'Donald — her will devising it to 
 him for twenty years, and after that time to his children, of whom the 
 defendant is the only surviving one. This defence of the defendant put 
 the deed in issue, and it was necessary that this validity should be 
 established, before he could derive any benefit from it. A formal reply 
 on the record to the defendant, has long been out of use in this State — 
 the proof of the complainants must be regarded as in reply to the defence 
 in the answer, and the charge of fraud, thus made out, the same as if it 
 had been formally replied, by a replication on file. In this view, it was 
 perfectly competent to the Chancellor to make the decree which he did. 
 But, in addition, it may be remarked, that the validity of the sheriff's sale 
 was very intimately connected with the legality of the defendant's title, 
 under the deed to"^his grandmother. If tliat 'had been good, it would 
 have interposed a serious obstacle to anv relief against the sheriff's sale. 
 The prayer of the bill, for a sale of the laud in satisfaction of the debts of 
 Thomas M'Donald, covers every thing which may be necessary to bo de- 
 creed to disencumber his title, and to subject the land to sale. In order
 
 *304] 
 
 208 SOUTH CAROLINA EQUITY REPORTS. [*303 
 
 to make such a decree, it was necessary that the defendant's title, under 
 his grandmother should be vacated. 
 
 As to the alleged fraud in that deed, I concur fully in the conclusion 
 of the Chancellor. It is not indispensably necessary to establish fraud 
 in a deed, as against the creditors, that it should be shown that the party 
 was in debt at the time of its execution, or that it was executed with a 
 view to future indebtedness. A deed is frequently avoided by proof of 
 facts subsequent to its execution, showing that the sale was merely 
 colorable. For if, notwithstanding an absolute sale, possession remain 
 in the vendor, it is generally destructive of the conveyance. The reten- 
 tion of possession creates the inference that the sale was made upon a 
 secret trust, for the use of the vendor. The fraud *consists in this, 
 that the vendee permits hira to hold himself out to the world as 
 the owner of the property, and upon the faith of it, to obtain credit. 
 The case before us, however, is accompanied by sufficient facts, at the 
 execution of the deed, to render it void. The proof is, that the grantor 
 was then in debt beyond the consideration paid, which was applied to the 
 payment of his debts ; that from that time to his death, he continued in 
 debt ; and that at the sale it was agreed that he should retain possession 
 during his own life, and that it should then go to his own children. If 
 the defendaat could put his finger on any point of time from the execution 
 of the deed to his father's death, when he was clear of debt, he might well 
 say that the old debts, which were paid off, ought not to affect the deed, 
 and they would not. But he is unable to do this — and the subsequent 
 debts, contracted in exoneration of preceding ones, are nothing more 
 than a continuation of the antecedent indebtedness. Like a stone de- 
 scending a mountain covered with snow, its bulk is increased every time 
 it rolls over ; but still every added particle is referable to the stone origi- 
 nally put in motion, as the cause of its adhesion to the aggregate mass. 
 Bat if the grantor did not owe a single debt at the time of the execution 
 of the deed, the agreement then made, that he should hold for life, and 
 that his children should succeed him, shows that the sale was colorable 
 merely, and upon an express parol trust for the grantor's use. This 
 (although I have no doubt the mother, to whom the deed was made, 
 intended no moral fraud) was yet covin in law, and made the deed, as an 
 absolute conveyance, void as against subsequent creditors without actual 
 notice of it. The deed, too, was left with Mr. Massey for safe-keeping, 
 and he did not deliver it over to the devisee of Mrs, M'Donald, until after 
 the death of Thomas M'Donald. This is, in itself, another strong circum- 
 stance, indicating fraud. The deed deposited in the hands of a third 
 person, might have been, and probably was, intended to be produced or 
 suppressed, accordingly as exigencies might demand It is, however, 
 unnecessary to pursue the evidence farthei" in detail ; it is abundant to 
 *3051 ^'^°^^' ^^'^^ according to familiar ^principles, this deed cannot be 
 -■ sustained as an absolute conveyance, and that the land is lial)le to 
 the payment of the complainant's debts. But I think that the considera- 
 tion actually paid by Mrs. M'Donald, and applied to the debts of her son, 
 ought to be refunded to her devisee, the defendant; and that in this point 
 of view, the deed may be regarded as a security for it. The proof is 
 clear that she paid for the land a debt due by the son to her husband's 
 estate, of $300, and that the remaining $700 of the consideration were
 
 *305] COLUMBIA, MAY, 1833. 209 
 
 also paid, appears to be pretty clearly made out. Althonpcli the convey- 
 ance is contaminated by legal fraud, it does not appear that the grantee 
 intended any actual fraud. In equity the parties are entitled, when they 
 have acted witliout any intention to commit a fraud, to be put in statu quo. 
 This is done by setting the deed aside, and refunding the money paid. 
 ISTo one can complain of this. The money paid was applied to the pay- 
 ment of debts, which were entitled to be paid out of the land and might 
 have sold it. Boyd v. Dunlap, and others, 1 John. Ch. Rep. 418. But 
 the money must be refunded without interest until the time at which the 
 title is devested, and the defendant is ordered to account for rents and 
 profits. For up to that time, the land is used in the manner and by the 
 person in which and by whom the grantee directed and consented it 
 should be used. The rents of the land, although received by her grantor, 
 was, 'in point of law, received by her, as an equivalent for interest. 
 
 There can be no question about the negro woman Rachel and her 
 children. Thomas M 'Donald purchased and paid for them, and took a 
 title to them in the name of his two sons. A trust resulted to him in 
 favor of his creditors, and the property as against them was as much his, 
 as if he had taken the bill of sale in his own name The defendant con- 
 tends, however, that his father was indebted to him, and that the purchase 
 was made in extinguishment of that debt. The nature of the indebted- 
 ness might seriously affect the conveyance, were it necessary to go into 
 that question. For I am not prepared to say that a promise to pay an 
 infant son *for his labor, by his father who is indebted, would r^pnp 
 constitute such a valuable consideration as would prevent a deed '- 
 founded on it from being declared fraudulent. For at law the father is 
 entitled to his services, and if he give up this right and promise to pay 
 him for them, this, although it might be binding on him, would, as against 
 his creditors, be purely voluntary, and would hardly be enough to sup- 
 port the deed. But, as I have already said, it is not necessary to pursue 
 that inquiry any fujfher. There is no evidence that the father bought 
 and paid for the negroes in consideration and in extinguishment of his 
 indebtedness to his son. The defendant says so in his answer, but this 
 is in avoidance of the title wliich the law would imply in his father from 
 the admission contained in the answer. Thomas M'Donald bought and 
 paid for the negroes and took a title in the name of the defendant and 
 his brothel", as his answer admits. A trust resulted from these facts, to 
 the said Thomas, in favor of his creditors, and tbe answer to avoid it 
 alleges that he bought and paid for them in satisfaction of a debt due to 
 the defendant. To sustain this allegation of his answer, the defendant 
 was bound to prove an agreement that they should be so bought, or that 
 they were accepted in satisfaction of the debt. In this he has failed. He 
 has only proved that he overseered for his father some time previous to 
 this purchase. How long he had so served him, or how much was really 
 due, is uncertain. It is perfectly clear, however, that his father did not, 
 and could not, owe a sum equal to the price of the negroes. The fact 
 that they were conveyed to himself and his brother, shows that his father's 
 indebtedness to him could not have constituted any part of the consider- 
 ation. I am satisfied, therefore, that the negroes must also be declared 
 liable to the payment of the complainants' debts. 
 
 The defendant must also account for the rents and profits of the land 
 Vol J.— U
 
 210 SOUTH CAROLINA EQUITY REPORTS. [*306 
 
 and ferry, and the hire of the slave Rachel from the first of January, 
 1828; for the proof is that he received the crop of that year in which 
 his father died, and that he has had possession ever since. Upon the 
 death of his father, the crop, land, and slaves, were assets applicable to 
 the payment of his debts ; and a receiver would, in such a case, have 
 *qn7l *''^6eu appointed by the Court of Equity, until the decision of this 
 -• case. It follows, that rents and profits and hire must be accounted 
 for. In such account the defendant must be allowed credit for the sum 
 of $1000, paid by his grandmother, Charlotte M'Donald, for the land, 
 with interest thereon from the first day of January, 1828 ; and also for 
 whatever sum was due to him by Thomas M'Donald at the time of his 
 death for his services as an overseer. From this last item must, how- 
 ever, be deducted any sum which the defendant received from Thos. 
 M'Donald, in either money or horses. 1^ a balance on the whole account 
 should be struck in favor of the defendant, then he must be paid such 
 balance out of the sale of the land and negroes. 
 
 It is ordered and decreed, that so much of Chancellor De Saussure's 
 decree as conflicts with this opinion, be modified according to the prin- 
 ciples hereinbefore stated, and in all other respects be affirmed. 
 
 Johnson and Harper, Js., concurred. 
 
 Wm. Pinchback vs. The Administrators of J. M'Craven, deceased. 
 
 A receipt is only jyrima facie evidence that all matters were then 
 accounted for, and finally settled ; it is not conclusive, and if fraud or 
 mistake can be shown, relief will be granted against it ; and therefore, 
 where on a bill to account, the defendant produced a receipt in full, if 
 the plaintiff can show that there were other moneys not embraced in the 
 receipt, and not then accounted for, he may do so, and will be entitled to 
 relief. See Benjamin v. Sinclair, 1 Bailey, 175 ; M'Dowell & Black v. 
 Lemaiter, 2 M'C. 320. 
 
 *308] *Wm. Stuckey, and others, vs. Hardy Stuckey, and others. 
 
 Where tbe residuary clause of a will contains the following words — "I do hereby 
 leave all the rest of my property that is not above mentioned, such as horses, 
 cattle, hogs, sheep, geese, beds, crop and other articles, too tedious to mention," 
 &c. ; Held, that money on hand at the testator's death, passed under it. (a) [*309] 
 
 This bill was filed by the plaintiffs as next of kin and heirs at law of 
 Edmund Stuckey, deceased, charging that he died intestate as to the 
 
 (a) See Peay & Picket v. Barber, ante, 95, where the words "all the rest of my 
 property," in the residuary clause of a will, were restricted to a particular descrip- 
 tioa of property. ji.
 
 *30S] COLUMBIA, JUNE, 1833. 211 
 
 money on hand at liis death, and claiming distribution thereof. Tlie 
 only question was, whether the sum of two thousand dollars, found on 
 hand at the death of Edmund Stuckey, passed under the residuary clause 
 of his will, which is in the words follosving : " I do hereby leave all the 
 rest of my property that is not above-mentioned, such as horses, cattle 
 hogs, sheep, geese, beds, crop and other articles, too tedious to mention, 
 to be equally divided between Hardy Stuckey, Edmund Stuckey, Howell 
 Stuckey, and Wm. Peebles," who were also appointed his executors. 
 
 The case was heard on the bill and answers, by Chancellor Johnston, 
 at Sumter, February, 1833, who held that the money passed under the 
 will, and dismissed the bill ; and from his decree the plaintiffs appealed. 
 
 Preston and Mayrant, for the appellants. This is a question as to 
 the intention of the testator. The general rule certainly is, that the 
 residuary clause carries everything not before enumerated ; but it will 
 not apply where there are words of qualification, restricting the generality 
 of the meaning. The words, " the rest of my property, such as," followed 
 by an enumeration of articles, show that the testator intended to confine 
 the bequest to property of that class. The words, " other articles too 
 tedious to mention," could not be intended to mean the money. It 
 amounted to one-fifth of the testator's whole estate ; and can it be sup- 
 posed that he regarded it of such -small value, as to be " too tedious to 
 mention V 
 
 irCord, contra. The preamble to the will shows the testator's inten- 
 tion to dispose of his whole estate ; and the words here used are general 
 enough to cover the money. The words, "all the rest of my property," 
 " and other articles,'' ^include the whole estate. Money is an r^^onq 
 article. This Court has held it to be a chattel, and the subject of ^ 
 levy. 
 
 O'Neall, J. We agree with the Chancellor, that there were no 
 words used in the clause of the will under consideration, which would 
 restrict the general words " all the rest of my property that is not above 
 mentioned," to property of the kinds specifically enumerated. 
 
 The money, the subject of this suit, was found on hand at the testator's 
 death, and was probably acquired after the execution of his will. The 
 words of the will in the case of Cambridge i;. Rous, 8 Yes. 12, are very 
 like the words of the will before us — " I then give and bequeath all the 
 rest and residue of my property and effects, whether in money or in the 
 public funds, or other securities of any sort or kind whatever, to be 
 equally divided." A specific legacy, consisting of plate, diamonds, jewels, 
 household furniture, linen, wearing apparel and old gold coins, lapsed by 
 the death of the legatee, in the lifetime of the testatrix ; the question 
 was, whether the lapsed legacy fell into the residue and passed under the 
 residuary clause. It was held that it did. The Master of the Rolls, 
 Sir William Grant, remarking on the words, says, there " the words, 
 ' whether in money or in public funds, or other securities of any sort or ■ 
 kind, whatsoever,' are adverted to as tending to show that at least the 
 specific articles were not included. But these are not words of restric- 
 tion. They are rather words of enlargement. The object was to exclude 
 nothing. Such an enumeration, under a videlicit, a much more restric-
 
 212 SOUTH CAROLINA EQUITY REPORTS. [*309 
 
 tive expression, has been held only a defective enumeration, not a restric- 
 tion to the s|3ecific articles. 
 
 The words of the will in the case before us, are, "I do hereby leave 
 all the rest of my property, that is not above mentioned, such as horses, 
 cattle, hoo-s, sheep, geese, beds, crop, and other articles too tedious to 
 mention, to'be equally divided," &c. The general term "property," has, 
 I am well satisfied, two meanings, one legal and the other popular. Its 
 leo-al meaning is equivalent to estate, and may include every thing a man 
 is worth : — Its popular meaning* would exclude choses in action, 
 "^^^^^ and cash on hand. If there was anything which showed that the 
 testator used it in its restricted popular sense, it ought to be so restricted 
 in the construction of his will. But it is manifest that he used it in its 
 largest sense, and that he intended it to cover every thing which he had 
 disposed of. The specification made was intended to enlarge, and not to 
 restrict, the words before used. 
 
 In the case of Bland v. Lamb, 2 Jac. & Walk. 406, Lord Chancellor 
 Eldon states the rule to be, " that very special words are required to take 
 a bequest of the residue out of the general rule." That was a case of 
 I)roperty subsequently and very unexpectedly acquired, by the will and 
 death of the testator's aunt, who was one of his legatees. At page 404, 
 Lord Chancellor Eldon states the general doctrine applicable to residuary 
 legacies, under such circumstances. 
 
 " After the cases which have been referred to, there can be no doubt 
 that a gift of the residue may have a limited operation, although the 
 generardoctrine of the Court is, that if a person give all the rest cf his 
 personal estate or property, such a gift will not only pass that which he 
 then has, but that which may become his property ; and it will operate in 
 this singular way, that although a testator may probably have meant to 
 pass nothing but what he had at the time of his will, (which alone, ac- 
 cording to the common sense of the expression, can be called his pro- 
 perty) yet if, at the time of his death, he has not a single particle of that 
 property, and has afterwards acquired other property, this last property will 
 pass under the words " my property. " The Courts have held, whether 
 on satisfactory grounds or not is another question, that where a person 
 gives all his property, it shows that he did not mean to die intestate as to 
 what he had at the time of making his will ; they have inferred that he 
 did not mean to die intestate as to what he should have at the time of 
 his death. This rule has sometimes operated with great hardship, and 
 J^o■1 1 -1 directly contrary to the intention of the party, *but notwithstanding 
 -^ that, it has been allowed to prevail." 
 From these authorities, it is clear, that in any point of vie^v, the 
 Chancellor's decree is correct, and ought to be affirmed. 
 It is accordingly so ordered. 
 
 Johnson and Harper, Js., concurred.
 
 '311] COLUMBIA, JUNE, 1833. 213 
 
 Sarah Cole, and others, minors, by their guardian, v. Alexander 
 
 Creyon. 
 
 General rule tbat in a bequest to the children of A. and B., or to A. and the 
 children of B., they take per capita; but a bequest to an ascertained individual, 
 and to a class of unascertained individuals to be ascertained at any future time, 
 vests a present interest of one-half in the individual ascertained, and the other 
 half vests in the class collectively, when they are ascertained. [■=^31!iJ 
 
 Where a bequest is to children at the death of a tenant for lite, those who then 
 answer the description of children will take. [*322] 
 
 A bequest on the death of a tenant for life to A. and the children of Elizabeth, to 
 be retained by the executors, until the age of twenty-one or day of marriage 
 which shall first happen — A. takes a moiety and is entitled to possession at 
 twenty-one; and the other moiety must be distributed equally among the children 
 of Elizabeth in esse when the eldest attains twenty-one. [*3l!3] 
 
 Application for partition being premature it was refused, but the bill retained with 
 leave to apply by petition, when the parties respectively become entitled to 
 receive their shares. [*32o] 
 
 This case was heard at Lancaster, July, 1830. The following decree 
 of the Chancellor then pronounced, presents the facts and the questions 
 made for the decision of the Court. 
 
 De Saussure, Chancellor. This is a bill for the partition of an estate 
 devised to the complainants, and the defendant. 
 
 It appears that George Ilicklin having a wife, but no children, made 
 
 and duly executed his last will and testament, on day December, 
 
 1823, by which he devised and bequeathed his whole estate to his wife 
 for life, and at her death to the complainants and defendants, who were 
 his nephews and nieces, subject to two small legacies amounting to two 
 hundred dollars. The words of the will applicable to the question under 
 consideration are as follows : " And all the balance of said estate real 
 and persona], it is my will and desire, that it be equally divided between 
 Henry and Elizabeth Cole's children, and Alexander Creyon, viz., the 
 offspring of the said Elizabeth Cole's body, and no other — to be retained 
 in the hands of my executors and executrix until the age of twenty-one 
 years, or days of marriage, which shall first happen ; then to be made 
 over to them lawfully, each legatee receiving their just ^wo/!a of the same, 
 which I will and bequeath to them and their heirs forever." The testator 
 had two nieces — Elizabeth,* married to Henry Cole, and Sarah, the r*322 
 
 wife of Creyon. The complainants are the children of ^ 
 
 Elizabeth Cole, and the defendant is the only son of Sarah Creyon. 
 
 George Hicklin died leaving his said last will and testament in full 
 force, his wife, and said nieces, Elizabeth Cole and Sarah Creyon, Inm 
 surviving— Henry Cole, the husband of Elizabeth, is also alive. The 
 complainants are their children. The eldest of them is about twelve 
 years of age ; and the defendant Alexander Creyon of the age of seventeen 
 years. The widow of the testator having lately died, this bill was liled 
 for partition of the estate. The complainants claim that the estate should 
 be divided equally between them and their cousin Alexander Creyon, so 
 that each shall have an equal share thereof. The defendant claims a 
 moiety of the estate. The question arises out of the wording of the
 
 214 SOUTH CAROLINA EQUITY REPORTS, [*312 
 
 •will. It is contended for the defendant, Alexander Crejon, that he 
 is entitled to a moiety of the estate by the terms of the will, taken 
 in conjunction with the relative situation of the devisees and legatees. 
 On examination of the disposing words of the will, without regarding 
 technical rules, they would seem obviously to import, that the children of 
 Elizabeth Cole and Alexander Creyon, are to take the estate in equal 
 shares. But it is argued for the defendant that this could not be the 
 meaning and intention of the testator, because by the provisions of the 
 will, the situation of the defendant Alexander Creyon, is entirely different 
 from that of the children of Elizabeth Cole, in these particulars. He is 
 designated by name — the others are to take as the children of Elizabeth 
 Cole ; and the delivery of their share is postponed to a future day, the day 
 of marriage or attaining twenty-one years of age, and Elizabeth Cole may 
 have more children who will be entitled to shares, besides these born at 
 the death of the testator; and that this involves difficulties in the tenure 
 of the estates, which ought to lead to a different construction. I have 
 considered the able argument furnished by the counsel on this point. But 
 I am not satisfied by it. It does not appear to me that the plain and 
 obvious import of the disposing words of the will should be changed by 
 a consideration of the difficulties which may grow out of the decision 
 *qio-] gi'^'ii,? effect to that obvious import. *If the meaning of the dis- 
 -' posing words of the will was doubtful or equivocal, then the argu- 
 ment ab convenienti would a])ply, and might lead to contrary construc- 
 tion. It was further argued for the defendant, that the Court might be 
 guided in the construction of the present will, by the provisions of a 
 former will by which the testator devised a moiety of his estate to his 
 niece Elizabeth Cole, and the other moiety to his niece Mrs. Creyon. It 
 is very dangerous to travel out of the will under consideration, for lights 
 to guide us in the construction of it. Those lights would often be de- 
 lusive. The Courts have been so aware of this danger, that it is only in 
 a few and most peculiar cases that they will receive parol evidence to 
 assist to guide in the construction of wills. Such as to ex])lain the per- 
 son or thing intended. I do not think that this is one of the cases in 
 which parol evidence is receivable — I permitted the parol evidence to be 
 taken down for consideration. It consisted of two parts — first, that by 
 a former will the testator gave half his estate to one of his nieces and 
 half to the other, and that on Alexander Creyon's mother marrying 
 contrary to his wishes, he made the new will. This, as far as it goes, 
 would add nothing to defendant's claim ])ut rather the contrary. One 
 of the witnesses, however, went on to say that he drew the will by the 
 directions of the testator, and that he was directed to draw it so that one 
 half of the estate should go to Alexander Creyon, and the other half to 
 the children of Henry and Elizabeth Cole ; and he believed, in using the 
 words he did, he was obeying the direction of testator, and that if they 
 do not produce that effect it is owing to his mistake. This evidence cer- 
 tainly goes directly to the point, and if received and allowed to control 
 the will, would establish the right of the defendant to a moiety of the 
 estate But I am not at liberty to receive and allow such testimony. It 
 would put every will at the mercy of witnesses who might be purchased 
 and perjured ; and although there might be no danger in this case (and 
 none has been suggested) the precedent would be most dangerous. I
 
 #0 
 
 313] COLUMBIA, JUNE, 1833. 215 
 
 am obliged therefore to exclude this testimony. The will then must be 
 interpreted by its own words, and it seems to me they carry the whole 
 estate to be divided equally *among Alexander Creyon and the 
 children of Elizabeth Cole born prior to the time fixed for the divi- L ^^^ 
 sion — when the eldest of them attains twenty-one years of age, or day of 
 marriage — under this view of the case it is obvious that no partition can 
 now be made. The application is premature. The com])lainants are 
 therefore out of Court, and the bill must be dismissed The costs to be 
 paid out of the estate. 
 
 From this decree the plaintiffs appealed, because the Chancellor refused 
 partition ; the defendant also appealed, on the ground that the Chancellor 
 erred in deciding that he was only entitled to take equally with the plain- 
 tiffs ; whereas, he contended he was entitled to one-half of the estate. 
 
 Williams, on the part of the plaintiffs, submitted the case on the brief, 
 without argument. 
 
 Blanding, for the defendant. The only question in the case is — whether 
 the offspring of Elizabeth Cole, as a class, take collectively one-half of 
 their testator's estate, or individually each one-fifth ? 
 
 This depends on the construction to be given to the words " children" 
 and " offspring." The defendant contends that they mean a class of un- 
 ascertained individuals ; and that A. Creyon takes as an ascertained 
 individual. 
 
 That there was a life estate to expire before it could be ascertained who 
 were to take, as the children of Elizabeth Cole, is the important feature 
 of the will, and on it the defendant rests his claim to one-half of the 
 estate. 
 
 Alexander Creyon was a person certain, and his remainder was to vest 
 in possession, on a fixed and certain event. He therefore took a present 
 interest in a vested remainder. The children of Mrs. Cole were unascer- 
 tained ; who they would be at the termination of the life estate, was 
 wholly uncertain and contingent. Their estate was, therefore, a contin- 
 gent remainder. 2 Prest. 35. 
 
 The first position requires no proof. The second can be supported by 
 authorities. Where a devise or bequest is to the children of a person, 
 and no time is fixed for the division or distribution, only such children as 
 are in being at the testator's death can take. But where the distribution 
 is postponed to ^ definite period, as to the death of another person, then all 
 take who are in being at that *period, or the death of that other per- r*325 
 son. In Myers v. Myers, 2 M'C. Ch. 257, Judge Nott has collected ^ 
 and reviewed all the cases on this point, and he says that, " where legacies 
 are given to a class of individuals, as to the children of B. to be divided 
 among them at the death of C, any child, who can entitle himself under the 
 description at the time of distributing the fund, may claim a ])art of it — 
 as well the children living at the period of distribution although not boru 
 till after the testator's death, as those born before, and living at the hap- 
 pening of the event." And the same learned Judge adopts the principle 
 of the case of Stanley v. Baker, Moore's Rep. 2:?0, that "a bequest to 
 the children of a living person, vests in all the children in esse at the ter- 
 mination of the life estate on which it is limited." 
 
 It is then clear, that the estate could not vest in any child of Elizabeth 
 Cole, until the death of the testator's widow. In Alexander Creyon, the
 
 !16] " 
 
 216 SOUTU CAROLINA EQUITY REPORTS. [*315 
 
 estate vested on the death of the testator, subject to the life estate of his 
 widow. 
 
 This being established, it will next be attempted to prove, that where 
 classes of persons are to take, and one can take presently, and the other 
 must take on a fututure contingency, each class must, from necessity, be 
 tenants in common with the other, and not joint tenants ; and that each 
 takes a moiety. 
 
 The fact that they cannot take at one and the same time, excludes one 
 of the unities essential to a joint tenancy. This needs no authority to 
 support it ; but see 5 Co. 8 ; 1 T. R. 630 ; 2 Prest. 20. Creyon and 
 Cole's children, therefore, could not take as joint tenants, but as tenants 
 in common. It then remains to be proved, that taking as classes and as 
 tenants in common, they take moieties. 
 
 Mr. Preston, vol. 2, p. 21, says, " a gift to the right heirs of two per- 
 sons who are dead, will be a gift to them as joint tenants and^jer capita, 
 and not per stirpes. But a gift to the right heirs of two persons who are 
 living, creates a tenancy in common, and the heirs of each person must 
 take a moiety. So by a gift to the heirs of three persons, of *whom 
 two are dead and one is living — it seems, the heirs of the person 
 who is living, would take one-third part separately to themselves, and 
 the heirs of the two deceased persons would be joint tenants of the two 
 remaining third parts. But if the gift be to the right heirs of two i)er- 
 sons who are living and of one who is dead, the heirs of the different 
 persons collectivel}', would take third parts." Prom these principles, the 
 conclusion is deduced, that a bequest to an ascertained individual, and to 
 a class of unascei'tained individuals, vest one-half in the said individual, 
 and the other half in the individuals of the class collectively when they 
 are ascertained. 
 
 Nemo est ha^es vifcnlis, is the principle of the distinction in the cases 
 put by Mr. Preston. So here, that no one can be ascertained to be the 
 offspring of Mrs. Cole, according to the meaning of this will, till the death 
 of the widow, should decide this case. 
 
 Tliere are adjudged cases which, at first blush, would seem to settle the 
 doctrine against the defendant; but a distinction can be shown between 
 them and tliis. 
 
 In Butler v. Stratton, 3 Br. Ch. Rep. SGT, the bequest was " to divide 
 equally between A., B. and the children of C." and it w^as held that the 
 children of C. took as if named individually in the will. In that case, it 
 is to be observed, that a present interest was given, and no children could 
 take but such as were in esse at the testator's death. They w^ere a class 
 of ascertained individuals, as much so as if they had been named in the 
 will. 
 
 In Bladder v. "Webb, 2 Pr. Wms. 383, there was a present bequest 
 equally to the testator's son John, to his son Peter's children, and his 
 daughter, Mrs. Webb's children. Mrs. Webb was alive. Lord Chan- 
 cellor King first inclined to the opinion, that the grandchildren w^ould 
 take per stirjjes, but finally decided that they would take j^er capita, as 
 if all the grandchildren's names had been inserted in the will. Now it is 
 observable that all their names could have been so inserted ; because, being 
 a gift to take effect at the testator's death, they were all ascertained.
 
 *316] COLUMBIA, JUNE, 1833. 217 
 
 That does not then come up to our case — and there the ^Chancellor r- . 
 doubted. But a strange reason is ffiven for the Chancellor's change L"^^! « 
 of opinion. It was, that Mrs. Webb was alive, and therefore, that the 
 children could not represent her, and could not take per stiryes. Had 
 she been dead they would not have represented her in that estate, and the 
 Chancellor changed his opinion on a verbal distinction, without a dif- 
 ference. 
 
 In the case of Phillips v. Garth, 3 Brown Ch. 64, Judge Bnller for the 
 Chancellor decided, that under a bequest "to next of kin, equally to be 
 divided, share and share alike,^' a brother, a nephew, and the nieces of 
 a deceased brother, took pe?- capita, and not per stirpes. Buller said 
 he was bound by the authority of Bladder v. Webb, although he 
 thought they ought to have taken per stiiyes. This case, too, was one 
 where a present interest passed, and all the legatees were in esse, and 
 ascertained at the testator's death. 
 
 So, the same decision was made in Northey v. Strange, 1 Pr. Wms. 
 341 ; and Weld v. Bradberry, 2 Vera, t05, in which cases, under a be- 
 quest to children and grandchildren equally, all look p)er capita. 
 
 In all these cases there was no legatee to come into being, or to be 
 ascertained — they all might have been named in the will, and took as if 
 they had been so named. But in our case, the children were not ascer- 
 tained — they could not have been named in the will, without changing 
 the entire construction, and they must, therefore take among themselves 
 collectively, a moiety. 
 
 If Lord King doubted, and Buller thought his decision wrong, in the 
 case where ascertained individuals were included in nomen coUectivum, 
 there can be no reason for not rejecting the rule, in a case where the desig- 
 nation, from necessity, must mean a class and not individuals. 
 
 This construction is one which will, in ninety-nine cases out of a hun- 
 dred, accord with the testator's intention. Wills are the result of natural 
 affection or friendship. The object is always a person in being ; and the 
 children unborn are provided for only on account of the testator's affec- 
 tion or friendship for the parent. This would uniformly lead to an 
 appropriation by classes; and exclude *the idea, that the amount r^^o-io 
 of interest which each should take, should depend on the fecundity '- 
 of the different objects of the testator's bounty. 
 
 But suppose the construction to be a doubtful one. It is an ambiguity 
 of intention, which may possibly be removed by parol, and if it can, the 
 evidence is full as to the real intention. Mr. Roberts in his treatise on 
 Wills, 470, says, " It seems to be a settled practice of the Courts, that if 
 they can, from the lights furnished in the instrument itself, gain some 
 foundation of conjectural inference, they will look out of the instrument, 
 to the situation of the parties concerned;" and again, " If matter can be 
 collected from the general context of the instrument, the approach to an 
 ambiguity patent, in a particular clause, will not exclude the admission of 
 parol evidence, provided it tends to confirm the collective inference from 
 the context." Now the conjectural inference which we collect from this 
 will, is that by offspring here, was meant a class of individuals, who were 
 the issue of one niece, and intended collectively to take an equal share 
 with A. Creyon, the son of another niece. Had the testator intended 
 otherwise, he would have named the individuals he intended. But he
 
 218 SOUTH CAROLINA EQUITY REPORTS. [*318 
 
 could not name them — for he intended that her after-born children should 
 take. But it could hardly be supposed that he would have intended, that 
 while he left open for admission of all Mrs. Cole's children, born up to 
 the time of distribution, yet that he intended that A. Creyon, whom he 
 specifically named, should have his share enhanced or diminished, by the 
 deaths or births of the other family. Such an intention will not be sup- 
 posed unless it is expressed in unambiguous terms. But in this will 
 " children" do mean a class ; and whether he intended that class should 
 take an equal share with Creyon, or that each individual of that class should 
 take an equal share with him, is doubtful. There may be a strong infer- 
 ence, that the equal share was only intended for the class ; and to strengthen 
 this inference, the parol testimony is offered. 
 
 In Ulrich v. Litchfield, 2 Atk. 312, the ambiguity was on the face of 
 *Q1Q1 ^^® instrument ; but there was a bearing in *the will that assisted 
 -' the sense, and parol evidence was received to decide the prepon- 
 derance. Here the uncertainty is, whether Mrs. Cole's " offspring," were 
 intended to take individually or as a class — and the parol evidence was 
 given to decide which. It is here to be observed, that the real question 
 is, do they take individually or as a class ? not whether they take per 
 capita ov per stirpes'^ That doubt can only arise, when the question is, 
 do they take sui juris, or in jure representationis ? Under this will they 
 take sui juris, and the mother is only named as the designation of the 
 class, or of the individuals of which it is composed, and the word lends no 
 light as to which was meant. 
 
 Where there are words used in a will, that are equally susceptible of 
 two distinct meanings, shall both be rejected, or shall extrinsic evidence 
 be admitted, to show which was intended ? Suppose the word " let," 
 should be used in an instrument, so as, that if the clause is taken by itself, 
 it is uncertain whether it mean to permit or to hinder. How is the diffi- 
 culty to be solved ? Look to the context — that furnishes some aid ; but 
 is not entirely conclusive. Shall not the preponderance be decided by 
 parol ? Is it not precisely the case, where a will is made in favor of J. 
 A., and there are two J. A.'s, and parol evidence is received to show 
 which ? 
 
 Here the will, all taken together, shows that the word "offspring," 
 means a class of persons, who will be in esse at the death of the testator's 
 widow, and the inference is, that they are to take as a class, and we aid 
 that inference by parol. 
 
 Harper, J. I am inclined to think the defendant's counsel correct 
 in his conclusion, that if there be a bequest to an ascertained individual 
 and to a class of unascertained individuals, (to be ascertained at any 
 future time after the death of the testator) it vests one half in the said 
 individual, and the other half in the individuals of the class collectively 
 when they are ascertained. The cases sufficiently settle that if there be 
 a bequest to the children of A. and the children of B., or to A. and the 
 children of B., they take per capita. This rule however is entirely arbi- 
 *3201 ^'"'^^T' ^"*^ ^ ^"^ "*^^ ^"^'^ t'^^^ if ^ ^different rule had been adopted, 
 the intention of testators would not have been more frequently 
 effected. In this particular case, independently of the parol testimony, I 
 think that we should be most likely to comply with the intention by a dif- 
 ferent construction. The rule being settled, however, must be adhered to ;
 
 *320] COLUMBIA, JUNE, 1833. 219 
 
 but I think the authorities relied on in the argument of counsel, (to which I 
 1 refer) go far to make out an exception, when the titles of the devisees 
 are to accrue at different times. In addition to the authorities quoted, I 
 may also refer to that from Sarame's case, 13 Co. 57. "And therefore 
 if a grant be made by deed to one man for term of life, the remainder to 
 the right heirs of A. and B. in fee, and A. hath issue and dieth, and 
 afterwards B hath issue and dieth, and then the tenant for life dieth ; 
 in that case, the heirs of A. and B. are not joint tenants, nor shall join 
 in a scire faciciH to execute the fine ; (24 E. 3 ; Joinder in Action, 10,) 
 because, that although the remainder be limited by one fine and by joint 
 w^ords, yet because that by the death of A. the remainder as to the moiety 
 vested in his heir, and by the death of B. the remainder vested in his heir, 
 at several times, they cannot be joint tenants." With respect to this 
 authority, it may be observed that it was the vesting in interest, and not 
 the vesting in possession, which prevented the joint tenancy. At the 
 death of the tenant for life, when the property vested in possession, A. and 
 B. being both dead, their heirs were ascertained, and there was nothing 
 to prevent their taking jointly. 
 
 In the present case, I think it cannot be doubted that the remainder 
 to the defendant Creyon was vested in interest immediately on the death 
 of the testator. Feme defines the fourth class of contingent remainders 
 to be "where the person to whom the remainder is limited is not yet 
 ascertained, or not yet in being." Certainly Alexander Creyon, named 
 in the will, was a person ascertained and in being, and might have dis- 
 posed of his remainder, or if he had died during the continuance of the 
 life estate, must have transmitted bis interest to his representatives. But 
 who the children of Elizabeth Cole should be at the death of the testator's 
 widow, Avas uncertain and unascertained. It might have happened that 
 all the children living at the time of the testator's death had *died r^n;^^ 
 and others had been born before the termination of the life estate. 
 It is certainly settled that if an estate be given to a class of persons, as to 
 the children of A. and B. after a life estate ; or if the division be post- 
 poned, as until the eldest shall arrive at the age of twenty-one, all the 
 children born before the event happens, will be entitled. It has been 
 supposed that in such case the property should be considered vested in 
 the children living at the time of testator's death, so that in case of their 
 death, they should transmit it to their representatives, and only so tar 
 liable to be devested, as that the estate should open and let in children 
 born before the vesting in possession ; and accordingly in the case ot 
 Devisme v. Mello, 1 Br. C. C. 537, where £4,000 were given to L. for 
 life, remainder to the children of W., and one of the children of W. living 
 at the death of the testator died during the continuance of the life estate, 
 it was held that her representative was entitled. But the point seems not 
 to have been particularly considered, and I think the decision is opposed 
 to the current of authorities and to the reason and intention. In (filmore 
 V. Severn, 1 Br. C. C. 581, where a legacy was given to the children of a 
 sister, to be paid them as they respectively attained the age of twenty-one, 
 it is said, that "as none were entitled to a vented interest, the Court 
 ordered the money to be paid into bank." This, however, may have been 
 merely an expression of the Reporter. In Ymer v I'rancis, - jm'. l-. k.. 
 658, where a legacy was given to children of a sister, and one of them
 
 220 SOUTH CAROLINA EQUITY REPORTS. [*32l 
 
 died in the testator's lifetime, it was contended that that cliild's portion 
 of the legacy luid lapsed ; but it was held that the testator must have 
 meant those who should be children at the time of his death. Now, if a 
 legacy be given expressly at a future period, subsequent to testator's 
 death, there seems to be the same or a stronger reason for saying that he 
 must have meant those who should be children at the time his gift is to 
 take effect. In Godfrey v. Davis, 6 Ves. 49, the Master of tlie Rolls 
 expresses himself thus: "Where the gift is to all the children of A. at 
 twenty-one, if there is no estate for life, it will vest in all the children 
 coming into existence, till one attains the age of twenty-one. Then that 
 one has a right to claim a sliare ; admitting into participation all the 
 *q99-i children then existing ;* so if it is to a person for life, and after the 
 "''^J death of that person, then to the children of A, the intention is 
 marked, that until the death of the person entitled for life, no interest 
 vests." In Hughes v. Hughes, 16 Ves. 256, where the devise was to 
 trustees, to maintain the children of testator's three daughters, until the 
 younger should attain the age of twenty-one, and then to distribute among 
 them ; one of the children who was living at the death of the testator died 
 before the period of distribution, and it was held that her representative 
 was not entitled. In this case, however, some stress was laid on the cir- 
 cumstance that the testator had provided expressly in his will, that if any 
 of the children should die leaving children, the children should stand in 
 the place of the parent. The cases are not so explicit as could be wished, 
 and so far as I have been able to discover, I cannot say that there is any 
 distinct rule on the subject. I think it however tiie more natural import 
 of the words, when the bequest is to children at the death of the tenant 
 for life, that those who then answer the description of children, should be 
 meant. The intention too, will, I think, in general be best complied with 
 by this construction. When property is thus given to children, and one 
 dies before the period of distribution, it will commonly happen that his 
 brothers and sisters will be his next of kin, and then it will be immaterial 
 whether they take as legatees or as next of kin of the deceased. But it 
 may happen that there will be a father or mother to take along with them ; 
 and when the testator has passed over the parent and given the whole to 
 the children, it would seem to defeat his intention that the parent should 
 at the period of distribution, take any portion as next of kin. When the 
 devise is of real estate in England, one brother would take the whole of 
 the deceased's portion as heir-at-law; and this would seem to defeat the 
 intention that all the children should take equally. There would be 
 reason for making a different construction, and probably a different one 
 ought to be made, when the child dying has left children ; and this also 
 to effectuate the intention ; for it cannot be supposed that the testator 
 intended the object of his bounty not to be capable of transmitting to his 
 children so as to provide for them. 
 
 5icQgg-i *The testator by his will, after the bequest to complainants 
 -^ and defendant, directs the property to be I'etaincd in the hands of 
 his executor and executrix until they attain the age of twenty-one years 
 or day of marriage, which shall first happen. According to the con- 
 struction we have made, one moiety is given to the defendant severally. 
 To this he will be entitled when he attains the age of twenty-one. The 
 other moiety is given to the complainants as a class. This they will be
 
 *323] COLUMBIA, JUNE, 1833. 221 
 
 entitled to distribute among the children then in esse, when the eldest 
 shall attain the age of twenty-one. 
 
 The application for partition was premature. The Chancellor states 
 that at the time of the decree, the eldest of the complainants was about 
 the age of twelve years and the defendant about seventeen. The bill is 
 also informal, in that the surviving executor is only a party in the 
 character of next friend of the complainants. Yet the parties were 
 entitled to come into Court to have their rights ascertained. We are 
 unwilling that the bill should be dismissed, giving occasion for further 
 expense and litigation. 
 
 It is therefore ordered and decreed, that the bill be retained ; with 
 liberty to the defendant, when he shall have attained the age of twenty- 
 one, to apply to the Court by petition stating that fact, and praying 
 partition and distribution ; giving proper notice to the complainants 
 and the executor Henry Cole ; and that upon such application one 
 moiety of the estate real and personal be apportioned and allotted to 
 him ; and with like liberty to the complainants, wiieu the eldest of them 
 shall have attained the age of twenty-one, to apply for partition and 
 distribution among themselves, or such children of Henry and Elizabeth 
 Cole as may then be in existence. 
 
 Johnson and O'Neall, Js., concurred. 
 
 *Wm. T. Spann, and Elizabeth, his wife, v. Tyre Jennings r^^ooi 
 Chs. G. Spann, and others. '- 
 
 Conveyance in trust for the separate use of the grantee's daughter S. during her 
 life, remainder to such child or children of S. "as may be then living, or who 
 shall marry, or attain twenty-one years," the trust was executed in the children 
 of S. on her death, and the legal estate then vested in them.[*324] 
 
 Where the wife, being sole next of kin to deceased infants, and entitled to their 
 whole estate, and there being no debts, before her marriage, took possession of the 
 estate without administration, and the husband, after marriage had a like posses- 
 sion : field, that the marital rights of the husband attached on the personal estate 
 of the deceased children, and it vested in him. [*325] 
 
 This case came to a hearing before Chancellor Johnston, at Sumter, 
 Feb. 1833, on the bill, answers and exhibits, and the following statement 
 of facts agreed to by the parties : 
 
 Ephraim Adams, the grandfather of the plaintiff Elizabeth, on the 2d 
 of January, 1817, conveyed certain slaves mentioned in the conveyance 
 exhibited with the bill, to Daniel Wade, " in trust to and for the sole and 
 separate use and benefit of his daughter Sarah O'Cinin, dnring her 
 natural life, and notwithstanding her coverture, &c., that tlio same should 
 not be liable to the debts of her then or any future husband, and from 
 and after her death, to the use of such child or cliildren of his said 
 daughter as may then be living, or who shall marry, or nttain the age of 
 twenty-one years, lawfully begotten by her then husbnnd Daniel OXiuin 
 junior." Mrs. O'Quin died in 1818, leaving three children by O'tiuin, 
 of whom the plaintiff Elizabeth is one ; the other two died shortly after
 
 222 SOUTH CAROLINA EQUITY REPORTS. [*324 
 
 their mother, minors, unmarried, without issue and intestate, and no one 
 has yet administered on their estates. The plaintiff Elizabeth went into 
 the possesion of these slaves before her marriage with James L. Spann, 
 and retained possession until that marriage, which took place in 1824. 
 He retained possession from the marriage until his death in 1827. The 
 main question argued in the case, was whether the marital rights of 
 James L. Spann attached on the slaves so as to pass them under his will. 
 
 The Chancellor decreed, that the trust in these slaves was executed in 
 the children of Sarah O'Quin on her death, and Mrs. Spann's third part 
 thereof vested in her husband, he having had them in possession during 
 coverture ; and that the other two-thirds vested in the children now 
 deceased, and are subject to administration, and therefore did not vest in 
 J. L. Spann, the husband. 
 
 From this decree the complainants appeal, because the Chancellor 
 decreed one-third of these slaves to the defendants ; and the defendants 
 appeal, because he did not decree them the whole. 
 
 i^oi)r-\ *Harper, J. We concur with the Chancellor, on all the points 
 -J involved in this case, except as to the marital rights of James L. 
 Spann not having attached on the shares of the children of Sarah O'Quin, 
 who died infants, leaving the plaintiff, Elizabeth, their sole next of kin, 
 and entitled to their whole estates. On that point we think the decree 
 must be modified on the authority of the case of Marsh v. McXai],(a) 
 decided by this Court at Columbia, Jannar}'', 1832. In that case the 
 husband had taken possession, without administration, of the estate to 
 which his wife was exclusively entitled, all the debts being paid, or there 
 being no debts ; and it was held that the marital rights had attached. In 
 this case it was agreed that the children died at a very early age, and 
 could have owed no debts. James L. Spann was entitled to the 
 administration in the name of his wife. But to what purpose should he 
 have administered ? There were no debts to pay, and no distribution to 
 be made. Was it simply that he might take possession in his own right ? 
 That would have been merely going through a nugatory ceremony. — Or if 
 any other person had administered, could the property have been re- 
 covered from him ? No — by going into Equity and shewing that there 
 were no debts, and that his wife was exclusively entitled, a recovery at 
 law would have been restrained. (&) In every point of view, then 
 administration would have been superfluous. He took possession of the 
 two-thirds derived from the deceased children, just as he did of the rest 
 of his wife's property, and we think his marital rights must be held to 
 have attached on them. 
 
 The decree of the Chancellor is modified accordingly. 
 
 Johnson and O'Neall, Js., concurred. 
 
 Blanding, for the plaintiffs. 
 
 Mayrant, contra. 
 
 (a) Not reported. 
 
 (b) If another administering could recover the property at law from the husband, 
 unless restrained by injunction, (which seems to be admitted) does it not prove 
 that the legal estate had not vested in the husband, and consequently that the 
 marital rights had not attached? See Elders v. Vauters, 4 Eq. Uep. 105; Farly v. 
 Early, 1 M'C. Ch. 614; Gregory v. Foster, 1 M'C. Ch, S24 ; Bradford v. Felder, 2 
 M'C. Ch. 170. R.
 
 '326] COLUMBIA, JUNE, 1833. 223 
 
 *"Wm. Spann v. Wm. Stewart, Sarah G. Wright, -^ 
 
 and others. L ^-^ 
 
 Where administration was granted to husband and wife in right of the wife, and 
 the administration bond was signed by both, the wife is not bound by the bond; 
 and after the husband's death, she is not liable for his devastavit during the 
 administration; and so much of the estate as remains unchanged is subject to 
 partition between the wife and the other distributees, the wife's interest therein 
 surviving to her. But as regards such part of the estate as the husband had 
 wasted, the wife is not entitled to a share thereof — and on a bill filed by the 
 security to the administration bond, against whom a judgment at law had been 
 obtained for the whole estate, relief was granted to this extent, and credit given 
 him on the judgment for her share of so much of the estate as had been 
 wasted. [*33li] 
 
 This case was heard before Chancellor Johnston, at Sumter, February, 
 1833. It presented the following facts. — Sarah E Screven married Dr. 
 Thomas W. Wright, prior to 1824. About that year her mother, A. 
 Screven died intestate, leaving Sarah E. Wright her only surviving 
 child, but leaving grandchildren, and possessed of a considerable 
 personal estate, consisting of Bank stock, slaves, furniture, &c., to one- 
 third of which Sarah E. Wright was entitled, as distributee of her 
 mother. On the 9th day of January, 1824, letters of administration 
 were granted to her and her husband, and the administration bond was 
 signed by her as well as her husband, with the plaintiii' as security. — 
 Wright, in February, 1824, sold the bank stock, furniture, &c., and 
 received the money, which amounted to $-^,800 including interest. Dr. 
 Wright died about the year 1825, intestate, and on the 17th February, 
 1826, administration de bonis non was granted to the plaintiff Stewart. 
 He obtained a decree against J. Mayrant, jun., administrator of Wright, 
 for the whole of A. Screven's estate, and after exhausting Wright's estate, 
 a considerable balance remained unsatisfied. To recover this balance, 
 suit was brought at law, against Spann, the security of the administra- 
 tion bond, and judgment obtained, on the plea of non est facium — 
 Before any writ of inquiry was executed, this bill was filed to restrain 
 Stewart from proceeding at law, and to subject Sarah E Wright, to the 
 demand, in exoneration of her security. 
 
 On the hearing, the plaintiff's counsel contended, 
 
 1. That Sarah E. Wright was bound for all acts done during 
 coverture, respecting the administration, whether done by herself or her 
 husband, and to indemnify the plaintiff to the whole extent, he being her 
 security : or, in other words, that the plaintiff was entitled to credit, on 
 the decree against the administrator of Wright, to the extent of Mrs. 
 Wright's distributive share of Mrs. Screven's estate ; *and that a ^327 
 decree should go against her for the balance due on the adminis- 
 tration, after exhausting Dr. Wright's estate. 
 
 2. If not entitled to a decree for this, then that the plaintiff should be 
 indemnified by crediting or enjoining the administrator's jiulgnuMit, to an 
 amount equal to the entire distributive share of 3Ir.-;. Wright, whether 
 reduced into possession by the husband, or remaining in action at his 
 death.
 
 224 SOUTH CAROLINA EQUITY REPORTS. [*327 
 
 3. Or, that he should be iiuleranified, by credit or injunction, for so 
 much of her share as the husband had reduced under his marital rights; 
 and that this extended to one-third of all the personal estate of the intes- 
 tate, which he had converted into actual cash, or received in negro hire. 
 
 4. Or, failing in this, that his indemnity should extend to all the interest 
 which had accrued on one-third of the cash received by Dr. Wright, and 
 the hire of the slaves of the intestate during coverture. 
 
 The Chancellor decreed against all these claims, and dismissed the bill 
 as to Sarah E. Wright, but retained it against Stewart, administrator de 
 bonis non, till an account. 
 
 The defendant appealed from this decision, and now moves this Court 
 for a reversal of the decree, discharging Sarah E. Wright ; and relies on 
 the same grounds he took on the Circuit. 
 
 Blancling, for the appellant, insisted on the following positions. 1st. 
 That Mrs. Wright is bound by the administration bond. 2d. That if she 
 is not bound by the bond, she is liable for the devastavits of that adminis- 
 tration. 3d. That if not so bound, her third part of the estate had been 
 converted by her husband to his own use by her consent, and she has no 
 equity to call it back. 4th. The husband having received the interest 
 and hire of her estate while he supported her, she cannot make his estate 
 liable for the same. 
 
 1. Mrs. Wright as only daughter of the intestate was exclusively enti- 
 tled to the adraniistration. 3rEd. 3 C. 11 : 3 Bac. Ab. 54, tit. Ex'or & 
 Adm'or F. Raym, 498; P. L. 492, Sec. IG; and this right is so perfect 
 that if the Ordinary refuse to grant it, a mandamus lies, 4 Bacon, Ab. tit, 
 -^090-1 Mandamus, *D. Having the right she had the legal capacity, with 
 '^"' -J the consent of her husl^and, to administer. 2 Roper Ilnsb. and 
 Wife, 97; and this consent being given, her right and legal capacity be- 
 came perfect. It is admitted that the common law rule is that a feme 
 covert cannot bind herself by bond ; but the Act of 1789, P. L. 493, 
 declares that every administrator shall enter into bond with security, and 
 differs herein from the British statute, 22 and 23 Car. 2 C. 10, 3 Bac. ab. 
 46, Exo'r and Adm'r, which merely requires that the Ordinary "shall 
 take sufficient bond with security," but does not direct from ivhom they 
 shall be taken ; and hence it has been decided that the husband shall take 
 the letters in the name of his wife, but give the bond himself. The hus- 
 band has no right but through her, and if she refuse to administer, he 
 cannot, and the right passes to the next of kin. Under our Act which 
 requires every adminidrator to enter into the bond, either there can be 
 no administration by the wife, although by law entitled to it and legally 
 competent to act, or she must join in the bond. The last clause of the 
 16th Section of the Act of 1789 proves that it was not intended to deprive 
 a feme covert of administration, for it provides, that where a widow 
 administratrix marries, her letters may be revoked and one of the next of 
 kin joined ivith her. A feme covert then, since the Act of 1789, may 
 administer, and it follows that she may give a bond. And such has been 
 the practice throughout the State, but especially in Charleston, where 
 the Ordinary's Office was first established, and filled by an eminent 
 lawyer. 
 
 The Chancellor, however, says, that the argument proves too much, 
 that infants and idiots may administer. With deference be it said, there
 
 *32S] COLUMBIA, JUNE, 1833. 225 
 
 is a distinction in the cases — for an infant or idiot has not the legal capa- 
 city to administer, 3 Bacon Ab. 14, Ex'or and Adni'or, B. 3. Nor is 
 there anything unreasonable in requiring a married woman to join in the 
 bond, for she is always entitled to a part of the estate, and the question 
 had been agitated, whether she was not liable for the devastavit of her 
 husband — whether the letters were granted before or after marriage. The 
 Act settled the question, and at the same time gave the devastavit, which 
 was but a tort, before the character of a specialty. And a good r^ogq 
 *reason for requiring her to join in the bond, is that thereby the ■- 
 security is protected from being called on by her, for her estate wasted 
 by her husband, with her own consent, and the bond, so far as the secu- 
 rity is concerned, becomes the act by which her interest in the estate is 
 vested in her husband, and cuts up the enquiry where there was that 
 legal reduction into possession by which the marital rights would attach. 
 
 2. But suppose the wife's bond void — is she bound for the devastavits 
 of her husband, who administered in her right with her consent ? In 
 this view of the case, the Court must reform the bond by considering her 
 name as stricken out of it, and the letters of administration, by striking 
 out his. For if we are governed by the law of England, the letters 
 should have been granted to her, and the bond given by him. The reason 
 why she is liable for her husband's devastavits is obvious. On his death 
 she is sole administratrix ; persons having claims against the estate must 
 sue her alone ; and who would pretend that she could plead plene ad- 
 mmistravit, that her husband, as her agent in the administration, had 
 consumed the whole estate ? If the demands are legal ones, she must be 
 charged at law for the waste of her husband ; if they are equitable, she 
 must be charged in equity, as administratrix. Beyond this it is admitted 
 the legal and equitable creditors have a further claim : i. e. if she be in- 
 solvent, her husband's estate may be charged, in equity, (not at law) 
 with their demands, so far as his estate has been benefitted by the estate 
 he has rendered insolvent. This is the clear legal reasoning, and it is 
 supported by authority. See the whole doctrine stated in 1 Roper's 
 Husband and Wife, 193. 
 
 !N"o one can doubt as to her liability to creditors, whose claims are 
 at law. But the complainant here represents the distributees of Mrs, 
 Screven, and, it is said, must come into equity, and that there a different 
 rule may prevail. She survived her husband — administration had been 
 granted with her consent — it survived, and she could not renounce it. 
 Had the distributees filed a bill against her alone, charging her with the 
 whole estate, could she reply that *the husband, acting in her right, r*y3Q 
 had destroyed the whole estate, and that they must look to his 
 estate ? Suppose to this it is answered, that his estate is insolvent, are 
 the distributees without redress ? This is the case before the Court. The 
 security to the administration bond has the right to stand in the place of 
 the distributees, and whomsoever they can charge he can chajge. Ihis 
 doctrine is laid down in Adair v. Mann, 1 Sch. & Lef. 257 ; 1 Rop. 
 Husb. and Wife, 194. 
 
 But it is said, that there is a distinction, and but three classes of cases 
 
 must be regarded : 1st, where the wife administered dum sola. 2d, where 
 
 the right accrued to her dum sola, and administration was granted during 
 
 coverture. 3d, where the right and administration both arose under 
 
 YoL. I. — 15
 
 226 SOUTH CAROLINA EQUITY REPORTS. [*330 
 
 coverture. In the first case, no one ever doubted she was bound by the 
 bond, and consequently bound to relieve her securities. In the two last 
 cases, the distinction is without a difference — see Roper's Husband and 
 Wife, 193, 194. The case of Beynon v. Collins, 2 Brown C, C. 323, 
 merely settled the question, whether Collins, the trustee in the settlement, 
 having sold the settled estate and paid the money over to the husband, 
 was liable to the wife on the husband's insolvency. So that all that Lord 
 Thurlow said on this point is extra-judicial ; or, as Lord Redesdale calls 
 it, "a sort of dictum." But this dictum is in accordance with Lord 
 Redesdale's opinion, and that laid down by Roper, who says that if her 
 adnjinistration by the husband is without the consent of the wife, and she 
 does intermeddle, on his death she may renounce. Bellew v. Scott, 1 
 •Strange, 440, a return that the husband and wife wasted as executor and 
 •executrix was held good, and the judgment was against both. All the 
 •cases show that she is administratrix during her husband's life-time, and 
 may continue so, whether she can renounce or not. What would be the 
 •effect of a renunciation ? Had a suit been brought in the husband's life- 
 time, the judgment would have been against both. Her renunciation, 
 ■therefore, after his death, can have no other effect than to release her from 
 the administration, not from acts already done. 
 
 ^oqi I *3. Has Mi's. Wright's share of Mrs. Screven's estate passed 
 -^ into the hands of her husband, with her consent, so that she can- 
 not call it back from his security ? 
 
 Spann was no party to any of the suits in which Mrs. Wright estab- 
 lished her rights against her husband's estate, and as against his security 
 the case is the same as if for the first time she was now making her claim ; 
 and the plaintiff is entitled to all the equities of the administration of her 
 husband, and the case will be argued as if she was now plaintiff against 
 that administrator. He administered with her consent, and before the 
 act of 1824, which renders void a sale by an administrator unless by the 
 order of the Ordinary, he converted all the estate by actual sale, into 
 cash, except the slaves, and their hire he received, and there were no 
 debts to be paid ; and this constitutes her claim against his estate. Can 
 she call back her share of his estate from his administration ? If she can 
 do it now, she could have demanded a settlement against him in his life- 
 time, and if it is an equity now, it was an equity then. ' Murray v. 
 Elibank, 10 Ves. 90, the Lord Chancellor says, "the husband, when he 
 can, is entitled to lay hold of the wife's property, and this Court will not 
 interfere." And Mr. Clancy, (page 122) says " if he has once acquired 
 the possession of the property, although it should be of an equitable 
 nature, this Court will leave him in the full enjoyment of it." So that 
 the wife's claim only attaches on that part of her personal estate which 
 the husband can acquire in no other way than by suit in Equity. Now 
 could not Wright have held his wife's third part of this money ? No 
 suit in Equity was necessary, and in such suit he must have been both 
 plaintiff and defendant. But again. — If the husband and wife, being 
 administrators, and he does an act which amounts to a devastavit, it vests 
 the legal estate in him. — So that Mrs. Wright, as administratrix, could 
 not now recover the property. See Jones v. M'Neil, 1 Hill, 96 ; 1 Bos. 
 & Pul. 293. In Arnold v. Bidgood, Cro. Jac. 318, the husband was 
 possessed of a lease in right of his wife, executrix, which he sold, and it
 
 *331J COLUMBIA, JUNE, 1833. 227 
 
 was held, that it passed to the grantee. See also 2 Black. Rep. 801. 
 And so if the husband alter the nature of the debt to the wife, e.xecntri.x 
 *he alone may bring an action to recover it. See the cases col- ^^ 
 lected in 1 Roper, Husband and Wife, 186. The debt due in L ^^^ 
 this case was Bank stock, which the husband converted into money. 
 
 4. The interest on Mrs. Wright's third part of the estate, should be dis- 
 counted. If she had tiled a bill for a settlement, would the Court have 
 ordered tire interest to be settled ? 1 Roper's Husband and Wife, 272. 
 
 C. & W. Mayrant, contra, as to the first ground, contended, that a 
 feme covert cannot execute a deed, and that her contracts are void in 
 Law and Equity ; and cited and relied on the case of Edwards v. Si)ann, 
 decided by this Court, in 18ol ; and 22 Car. 2, c. 10; 3 Bacon, Tit. 
 Ex'ors & Adra'rs, p. 6 ; John v. John, 11 Yes. 531 ; 3 Bl. Rep. 620. 
 As regards the liability of the wife, for the devastavit of the husband, 
 they argued that the wife could not assent to the administration, and 
 that she is not liable for a devastavit unless she continues the adminis- 
 tration after her husband's death. 1 Sch. & Lef 266. And on the 
 question of reduction into possession, they insisted, that the decree 
 against Wright's administrator fixing the liability of his estate, concludes 
 this question. On this question, they cited and relied on 2 M'C. Ch. 
 Rep. 433 ; 3 Eq. Rep. 160. 
 
 CNeall, J. We concur in opinion with the Chancellor, that the 
 defendant Sarah E. Wright is not bound by the administration bond 
 executed by her during coverture, and that she is not liable to account 
 to the complainant for any devastavit committed by her husband. Dr. 
 Wright, in administering the estate of Mrs. Screven. The case of 
 Edwards u. Spann, (a) decided by this Court, May Term, 1831, is an 
 authority directly in support of the Chancellor's decision. We also agree 
 with the Chancellor that the whole distributive share of Mrs. Wright in 
 the estate of her mother, could not be considered as reduced into the 
 possession of her husband during coverture. So much of tlie )iro)>prty 
 of Mrs. Screven at the death of Dr. Wright as remained unchanged, (/>) 
 was ''liable to be partitioned between Mrs. Wright and the r^^ooo 
 other distributees ; her share or interest in it, was therefore an ^ ^ 
 equitable chose in action which survived to her. The cases referred to 
 by the Chancellor, and the cases of Schuyler v. Hoyle, 5 John C. R. 196 ; 
 Blount V. Bestland, 5 Ves. 515 ; Wildman v. Wildman, 9 Ves. 174, and 
 Baker v. Hall, 12 Yes. 497, fully sustain this position and conclusion. 
 
 But we differ with the Chancellor, in his conclusion that the com- 
 plainant, the security of the administrator, is liable for the share of ^Nlrs. 
 Wright of that portion of her mother's estate which was wasted and 
 consumed by her husband. It seems to me that when the estate of an 
 
 («) Not reported. 
 
 (6) The only property remainina; unchniiged was the negroes: niul nccordinp to 
 the doctrine of Spann v. .Jennings (aiUe, o2l) the marital rights would have attached 
 on them if the wife had h^cn soldi/ entitled to them— the grounds of distinctinii 
 between that case and this being that tiiere the wife was soMy entitled to tlie estate, 
 and here J'/intfu with others, and that lierc there was administration by the husband, 
 whilst there there was noue. 15-
 
 228 SOUTH CAEOLINA EQUITY REPORTS. [*333 
 
 intestate is sold, and converted into money or notes and obligations to 
 the administrator for the proceeds, that so far as his wife may have an 
 interest in the property thus changed, it is to all interests and purposes a 
 reduction into possession. The money, or notes or obligations into 
 which it is converted, is at law his own ; in equity, when they could be 
 traced in specie, and the administrator was dead or insolvent, they might 
 be followed at the instance of a creditor or a distributee who was a 
 stranger to the administrator, as assets of the estate. But this is the 
 utmost extent to which Equity could go in preserving the proceeds as the 
 estate. The instant they cease to be capable of being traced, the 
 administrator's liability to account for them is all which can be looked to 
 by either creditors or distributees. Could the husband during coverture 
 have been compelled to account for his wife's interest in the fund which he 
 had wasted ? I apprehend he could not. For he had the right to receive 
 it as husband, or even release it. If he could not be compelled to account 
 for it, and having the actual possession, it is plain that there was nothing 
 to survive to the wife in this respect. Her right pro fanto had been con- 
 sumed, and consequently reduced into possession by the husband. 
 
 But be this view correct or not, and I think it is, both on reason and 
 on the authority of the cases of Hix r. Cox, Marsh & Nail, (a) and Spann 
 V. Jennings & Spann executors, decided by this Court, (ante, 324.) still 
 ^r,q_) -| the complainant is not liable *for Mrs. Wright's share of that part 
 "^ -J of the estate of her mother which was wasted by her husband, Dr. 
 Wright. No case can be found in which the wife was held to be entitled to 
 have an account from her deceased husband's representatives for so much of 
 her choses in action as were received by him and wasted : the utmost extent 
 of her rights by survivorship is to the undisposed residuum. This was the 
 case in Schuyler i'. Hoyle, and Baker v. Hall. The fact that the husband 
 is the administrator, and acting in a trust capacity, cannot alter the case. 
 His devastavit arises, it is true, from his powers as administrator, but it 
 is a personal wrong for which he is personally liable. It is the con- 
 version of the testator's or intestate's goods and chattels, rights and 
 credits to his own use. This is wrongful, as against -the creditors and 
 distributees, over whose rights he has no control. But over the rights 
 of his wife, in action, he has the right to reduce them into possession, 
 and as against her there can be no devastavit ; for he has the right to 
 receive her interest and apply it as his own. If Dr. AVright is not liable 
 to account for the devastavit committed, so far as his wife's interest in the 
 same is concerned, it follows that the complainant is entitled so far to the 
 relief which he seeks. For as security he is liable as far, and no farther, 
 than his principal. 
 
 It is ordered and decreed, that the Chancellor's decree be so far modi- 
 fied as to allow the complainant credit on the judgment recovered against 
 him in the name of the Ordinary on the administration bond, for Mrs. 
 Wright's one-third part of so much of the personal estate of Mrs. Screven 
 as was consumed and wasted by her husband, Dr. Wright, and in all 
 other respects that his decree be affirmed. 
 
 Johnson and Harper, Js., concurred. 
 
 (a) Not reported.
 
 •335] COLUMBIA, JUNE, 1833. 229 
 
 *Stuart Perry v. Wm. Nixon and Jas. W. Tate. [*335 
 
 A creditor who has obtained judgment, sued out execution and levied it on property 
 in which the debtor has the equitable but not the legal estate, is entitled to the 
 aid of the Court of Equity, to make the property available in payment of his 
 demand. [*336] 
 
 The defendant, Tate, being entitled for life to the profits of an estate, 
 held by the defendant Nixon, as trustee, contracted a debt to the plaintiff 
 for the support of his family, on which he confessed judgment. The 
 plaintiff sued out execution, and levied on the trust property, wiien the 
 defendants filed a bill and obtained an injunction. The plaintiff then 
 filed this bill, to subject the property to tlie payment of his debt ; and 
 the injunction was dissolved, and the defendant's bilt dismissed. In the 
 meantime Tate left the State ; and it was admitted that he had no other 
 property. 
 
 The case was heard by Chancellor De Saussure, at Camden, July, 
 1832, who by a decretal order, directed the trustee to pay the plaintiff's 
 debt, out of the trust estate in his hands. 
 
 From this decree the defendants appealed on the grounds : 
 
 1. That it was neither alleged in the bill, nor proved, that the plain- 
 tiff could not enforce execution at law — and there was adequate remedy 
 at law, by compelling Tate to assign under a ca. sa. ; which could have 
 been done before he left the State. 
 
 2. That the debt contracted to the plaintiff was not for the benefit of 
 the trust estate, and only the life estate of Tate liable ; and the trustee 
 not liable. 
 
 Blanding, for the appellant, in support of these grounds, cited and 
 relied on Screven v. Bostick, 2 M'C. Ch. 416 ; Edmonds v. Davis, 
 1 Hill, 279. 
 
 DeSaussiire, contra, contended that the plaintiff had brought liimself 
 within the rules which justify the interference of Equity, by alleging 
 and proving that judgment was obtained and execution levied on the 
 trust property, and that there was no other property — and he could not 
 enforce a ca. sa., for the defendant left the State. 4 John. Ch. Rep. 
 671-5. 
 
 *0'Neall, J. The only question argued in this case, and on r*33g 
 which it will be necessary to express an opinion, is whether the 
 complainant has entitled himself to relief in this Court. It is understood 
 from the brief and the admissions made in the argument, that Perry had 
 recovered a judgment and sued out an execution at law, which was levied 
 on the trust property, when an injunction was nxived for and obtained by 
 these defendants ; this bill was tlien filed, and the injunction heretofore 
 obtained by the defendants was dissolved and their bill dismissed. _ In 
 the meantime the cestui que frusf, Tate, went from and without the limits 
 of the State. The defendants admit that the trust property is the only 
 estate of the cestui que trust, Tate. . 
 
 Before a creditor seeking relief touching the personal assets of his
 
 230 SOUTH CAROLINA EQUITY REPORTS. [*336 
 
 debtor can come into this Court, he must show not only a judgment and 
 execution, hut that he has pursued his execution at law to every available 
 extent. The rule as stated in the case of Brinkerhoff t'. Brown, 4 John 
 C. R. 677, seems to me the true one, "to procure relief in Equity by a 
 bill brought to assist the execution of a judgment at law, the creditor 
 must show that he has proceeded at law to the extent necessary to give 
 him a good title." Screven v. Bostick, 2 M'C. C. R. 416, Brown v. 
 M'Donald, decided at this Term. Following up the rule laid down in 
 the case of Brinkerhoff v. Brown, Chancellor Kent, in the case of 
 M'Derrautt ?'. Strong, 4 John C. R. 691, says, " I regard the law to be 
 clearly settled, that before a judgment creditor can come here for aid 
 against the goods and chattels of his debtor, or against any equitable 
 interest which he may have therein, he must first take out execution and 
 cause it to be levied or returned, so as to show thereby that his remedy 
 at law fails, and that he has also acquired, by that act of diligence, a 
 legal preference to the debtor's interest." In the case of Spader v. Davis, 
 5 John. C. R. 280, the plaintiffs had recovered judgments at law, and 
 sued out executions which were returned nulla bona. Chancellor Kent 
 said that "the plaintiiBTs at the time of filing their bill had acquired, as 
 execution creditors at law, a priority of right valid in Equity, to the trust 
 moneys I)elonging to the defendant D. and in the hands of the defendant 
 ^„o>T-| H., *and that payments of the same by II. to D. subsequent to 
 -' the filing of the bill containing notice of that right and of their 
 claim in pursuance of it, were made in his own wrong." 
 
 From these cases and authorities it is clear that the plaintiff is entitled 
 to the relief which he seeks. He has recovered judgment, sued out execu- 
 tion and levied it on property in which his debtor has the equitable but 
 not the legal estate. This entitles him to the aid of this Court, for he 
 has shown a legal title to the relief sought. 
 
 But it is said the party ought to have gone one step farther, and com- 
 pelled the debtor to assign his interest by ca. sa. This in this case could 
 not have been resorted to, for the debtor had left the State before the injunc- 
 tion was dissolved. I do not think, however, that it is necessary in any 
 case. The party must show an execution returned nulla bona, or levied 
 on the trust property, before he can claim the intervention of the Court 
 of Equity to relieve him touching the personal assets of his debtor. This 
 seems to furnish a better and higher guard against unnecessary applica- 
 tions to this Court, than an assignment under a ca. sa. would. For an 
 assignment might be forced and obtained, when the debtor's other funds 
 were amply sufficient to pay the debt. But there can be no necessity for 
 an assignment to entitle a creditor to proceed in equity; the fact that his 
 debtor is in equity regarded as the owner of property, which at law he is 
 not, entitles the creditor to its aid, to make it available in payment of his 
 legal demand. It is not necessary that he should have either legal or 
 equitable title to the property; his debt legally established, and pursued 
 to every available extent at law, entitles him to have the equitable assets 
 of his debtor applied to its payment. I am satisfied that the Chancellor's 
 decree is correct in principle ; but as it may have (unintentionally) charged 
 the trustee personally with the debt of the cestui que trust, from "the 
 general words used in the decree, it will be necessary in this respect to 
 modify it.
 
 *337] COLUMBIA, JUNE, 1833. 231 
 
 It is ordered and decreed, that the Chancellor's decree be so far modi- 
 fied, that it be referred to the Commissioner to ascertain and report what 
 part of the trust estate *in the bill mentioned, belonging to the ^^ 
 defendant, J. "W. Tate, remains in the hands of the defendant, L ' '^"^^ 
 Wm. Xixon, or was in his hands at any time since the filing of the l)ill ; 
 and that the said Wm. Xixon apply so much thereof, either income or 
 capital, as may be necessary, to the plaintiff's debt, interest and costs at 
 law; but if the capital should be broken in upon, it can only be for the 
 life of James W. Tate, and if sold, it must be sold for his life only; the 
 purchaser or purchasers to give bond or bonds with good security, for the 
 delivery to the Commissioner of this Court of such of the slaves and their 
 increase, as may be sold to pay the plaintiff's debts, and vvliich may be 
 alive at the death of James W. Tate. The costs to be paid out of the 
 trust estate. 
 
 Johnson and Harper, Js., concurred. 
 
 Brockman vs. Bowman, 
 
 Where a bill is filed by creditors to avoid the alienation of a deceased 
 person for fraud, his executor or administrator is a necessary party; and 
 if the Court should set aside the conveyance, it will order the property to 
 be delivered to the executor or administrator, to be applied in due course 
 of administration. The suing creditors are not entitled to have their de- 
 mands paid out of the property, in preference to others. 
 
 *Smith and Cuttino vs. H. Macon, Administrator of William 
 Capers, deceased. 
 
 [*339 
 
 The penalty of a bond, conditioned for tlie pnyment of money, is to secure pnvment 
 of the whole of the condition, and any part of it remaining: unpaid is a forfeiture 
 of the penaltj- — therefore the obligee may recover the balance of the condition 
 with interest thereon, although that sum when added to the payments previously 
 made would exceed the penalty, (a) [*339] 
 
 The bill in this case was brought by the plaintifi""s creditors,_by bond 
 of William Capers, deceased, against the defendant as his administrator. 
 
 Of the numerous questions presented to the Court, it is only thought 
 necessary to notice one, viz. : Whether the plaintiffs were entitled to 
 recover beyond the penalty of the bond. 
 
 O'Neall, J. It is objected by the defendants, that he ought not to 
 be liable to pay the complainants more than the balance of the penalty 
 of the bond, after deducting from it a payment made by his intestate, m 
 
 (a) See contra, Bonsall v. Elvers, 1 M'C. 
 
 503.
 
 232 SOUTH CAROLINA EQUITY REPORTS. [*339 
 
 his lifetime ; on the ground that, to apply the payment to the extinguish- 
 ment of the debt and interest, on the condition of the bond, would be 
 virtually allowing interest to be recovered beyond the penalty. He relied 
 upon the case of M'Wortli t\ Thomas, 5 Ves. 329, as authority for this 
 position. That was a bill filed by the creditors of Ilted Thomas, to 
 obtain satisfaction out of the real estate. The executrix claimed to be 
 allowed to retain £1,325, the arrears of an annuity of £100 per year, 
 granted by the deceased to her father, secured by a bond in the penalty 
 of £500. The Lord Chancellor refused to allow more than the penalty, 
 saying — "This is in the administration of assets. Is it possible for the 
 Court to let a creditor stand as a specialty creditor, for more than the 
 debt at laiv? There is no doubt of the proposition in Collins v. Collins, 
 but then it must be enforced as an agreement between the parties ; but 
 in the administration of assets, how can I possibly deviate from the law ? 
 I cannot put a larger sura in the bond than the parties have." To the 
 same purpose and extent are the cases of Tew v. Winterton, and Knight 
 V. M'Lean, 3 B. C. R. 489, 496. I am satisfied that the view taken by 
 Lord Eldon, in the case of M'Worth v. Thomas, is perfectly correct ; and 
 if it is an authority at all applicable to the case, it is directly against the 
 *Qinl position assumed by the defendant.* In the words of the Lord 
 J Chancellor, with the change of a single one, I would say, "I can- 
 not put a" less "sum into the bond than the parties have." To accom- 
 plish the defendant's purposes, this must be done. The penalty is to 
 secure the payment of the whole condition ; any part of it remaining 
 unpaid is a forfeiture of the penalty, which is the debt at law. The party 
 to be relieved against it in equity, must pay the amount really due on the 
 condition. What is the amount due on it ? The balance of the debt 
 specified in the conditioti, after applying the payment at the time it was 
 made to the extinguishment of the interest to that time, and the residue 
 to the principal, with interest on the balance to the present time. If this 
 is less than the penalty (as it is admitted to be), the defendant can only 
 claim to be relieved from the penalty, by paying such balance, 
 
 Johnson and Harper, Js., concurred. 
 
 De Saussui^e, for the appellants. 
 Maijrant, contra. 
 
 Smith and Cutting, Administrators, vs. Sarah Osborne, and others. 
 
 Where a mortjiage of land having been recorded, the land was sold by the moi-tgagor 
 and the purchaser took possession, JLld, that the recording was notice to the 
 purchaser, and the statute of limitations will not bar the mortgage lien. The 
 decision in Thayer v. Cramer, 1 M'C. Ch. 395, considered and adhered to. [*342] 
 
 Heard before Chancellor Johnston, at Sumter, February Term, 1833. 
 
 This bill was filed to foreclose a mortgage of a tract of land, executed 
 23d Nov. 1816, by Wm. R. Theus to George and Savage Smith, the 
 plaintiffs' intestates, to secure the payment of a bond of the same date,
 
 *34:0] COLUMBIA, JUNE, IS 33. 233 
 
 the last instalment of which became due 1st Januar)'', 1821. The mort- 
 gage was recorded in the Register's Office, February 10th, 1811. On 
 the 1st May, 1818, Theus sold and conveyed the mortgaged premises to 
 Robert F. Wethers, who on the 28th of the same month sold *and r:^oii 
 conveyed to Charles L. Osborne. Osborne then went into posses- I ^^^ 
 sion and retained it until his death in 1826, since which the defendants, 
 his distributees, have continued in possession. The bill was filed in 
 August, 1830. 
 
 The defendants in their answer set up the purchase from Wethers, 
 which they allege was bona fide and without notice of the mortgage, and 
 rely on the statute of limitations. The main question for the considera- 
 tion of the Court was whether the recording of the mortgage was such 
 notice as to prevent the operation of the statute ; in relation to which 
 the Chancellor in his decree says : 
 
 "With respect to the act of limitations, I am not at liberty to depart 
 from the decisions of the Court of Appeals. 
 
 "Purchasers must be held to reasonable vigilance. When Osborne 
 purchased from Wethers, he was bound to look into his title. If he had 
 looked into it, he would have discovered that it came from Theus ; and 
 then the recording of the mortgage would have been notice to him. 
 
 " The time must come when the case of Thayer and Cramer, 1 M'C. 
 Ch. 395, and the case of Bynum and Nixon, will be held to lay down pro- 
 positions entirely too broad and unqualified. They cannot be reconciled 
 with the case of M'Rae and Smith, 2 Bay, 339. 
 
 " It will not do, in principle, to except out of the general rule', that 
 trustees by implication may rely on the statute — purchasers from mort- 
 gagors, which purchasers are in no respect truste.es, except as held so by 
 the Court on account of their fraud in purchasing the entire interest 
 knowing that it is burdened with a lien. If they purchase witliout notice, 
 they stand on the ground of innocent purchasers, and besides are entitled, 
 from their adverse holding, to the benefit of their possession from the 
 time they take it. If they purchase with notice, they are entitled to the 
 benefit of their possession from the time they give notice of its adverse 
 character to the incumbrancer. 
 
 "But I am bound by the decisions which make no such distinctions." 
 
 His Honor therefore decreed foreclosure, and ordered a sale of the 
 premises to satisfy the balance reported by the Commissioner to be due 
 on the bond. 
 
 *From this decree the defendants appealed, on the ground that r*342 
 the plea of the statute of limitations should have been sustained. 
 
 Haynesworth and Blanding, for the appellants. 
 
 G. and W. May rant, for the appellees. 
 
 Johnson, J. Both the grounds of this motion resolve themselves into 
 the question whether the complainant is bound by the statute of limita- 
 tions, and but for the doubts thrown out by the Chancellor, anil the very 
 learned argument of my brother Harper, in the judgment dc-livered l_)y 
 him in Thayer v. Davison, when presiding in the Court of Cliancory in 
 Charleston, I should have regarded the cases of Thayer and Cramor, and 
 Bynum and Nixon, referred to by the Chancellor, as decisive of it. I
 
 234 SOUTH CAROLINA EQUITY REPORTS. [*342 
 
 have been induced by these considerations to look again into the subject, 
 and the result of farther examination is, that it is not a case for the 
 technical application of the statute. The statute does not operate to 
 invest the party in possession and claiming under it with any right or 
 title, but only as a bar to the plaintiff's right to recover. The words are 
 that "if any person or persons to whom any right or title to lands, tene- 
 ments or hereditaments in this province, shall descend or come, do not 
 prosecute the same within five (not ten) years after such right or title 
 accrued, that he and they, and all persons claiming under him and them, 
 shall be for ever barred to recover the same," &c. ; and the same statute 
 points out an action at law as the only effectual mode of making or pro- 
 secuting the claim, so as to prevent the bar of the statute. 
 
 As mortgagees, the legal estate in the lauds never has been, and is not 
 now, in the complainants or their intestates — the Act of 1791, 1 Faust, 
 65, expressly declares "that no mortgagee shall be entitled to maintain 
 any possessory action for the real estate mortgaged, even after the time 
 for the payment of the money secured by the mortgage is elapsed ; but 
 the mortgagor shall be deemed owner of the lands, and the mortgagee as 
 owner of the money lent or due, and shall be entitled to recover satisfac- 
 tion for the same, out of the lands, in the manner above set forth." 
 *qiQl ^sither the plaintiffs nor their intestates could *at any lime here- 
 -J tofore have made claim to those lands by an action at law, nor is 
 that the object of these proceedings — they are only intended to charge 
 them with tlie payment of a debt due by the mortgagor. IIow then can 
 it be .said, that the statute of limitations operates as a bar ? No one 
 can maintain an action for the land, nntil it shall have been regularly 
 sold, and the equity of redemption foreclosed ; and if, notwithstanding, 
 the statute of limitations shall begin to operate, either from the date of 
 the mortgage or from the time of the condition broken, it might well 
 happen that the mortgagee would be barred, notwithstanding the facili- 
 ties which the Courts afford, and all the diligence which he might use : 
 for we know that suits in law and equity are sometimes protracted even 
 longer than necessary to complete the bar of the statute. 
 
 I know that the rule of the statute is frequently adopted in Chancery, 
 when it does not operate as a technical bar ; and here I think the c^ues- 
 tion, whether recording shall be considered as notice or not, becomes 
 important. The Act requiring mortgages to be recorded, seems to have 
 been intended principally to settle the priority between them — but the 
 motive for recording them is so great, that few would neglect it, who 
 thought it a necessary security, and few men who feel the stimulus which 
 interest usually imparts, would neglect to profit by the information which 
 the Register's office would impart when they were about to purchase a 
 tract of land, unless they had implicit confidence in the representations of 
 the seller ; and if they suffered themselves to be deceived, they ought to 
 take the consequences. Through this mean, a purchaser has it in his 
 power to inform himself, and if he neglects to do so he has no claim on a 
 Court of Ecjuity, for the application of the rule of the statute. On the 
 other hand, if the mortgagee neglect to record his mortgage, and by this 
 means puts it out of the power of the purchaser to inform himself, he is 
 protected as a purchaser without notice. In this view, therefore, recording 
 the mortgage is notice to the subsequent purchaser.
 
 *344] COLUMBIA, JUNE, 1833. 235 
 
 *The case of M'Ray v. Smith, 2 Bay, 339, noticed by tlie Clian- ^^., 
 cellor, is, I think, reconcilable to this view of the suliject. That ^ "^ 
 was an action to try titles to land. The plaintiff claimed under a sheriff's 
 sale on Jl. fa., against one Woodroof, and the defendant under a purchase 
 from him. The judgment had been obtained against Woodroof I)efore he 
 sold to the defendant, and bound the land ; but the defendant had had 
 possession under his purchase more than five years before the sale l)y the 
 sheriff, and it was held that he was protected by the statute. Having 
 the judgment, the creditor might, at any moment, and in defiance of 
 Woodroof, have sold the land, if he intended to resort to it for the satis- 
 faction of his debt^ — and his neglecting to do so, furnished a reasonable 
 ground for the application of the rule of the statute. 
 
 It is therefore ordered and decreed, that this motion be dismissed ; and 
 that the decree of the Circuit Court be and the same is hereby affirmed. 
 
 CXeall, J., concurred. 
 
 Harper, J., dissented. 
 
 Bi^NjAMiN Perkins, and others, v. Mary R. Kershaw, and others. 
 
 Where a trustee has been legally compelled to pay money, as the surety of his 
 cestui que trust, in Equity the trust estate will be charged with the amount paid; 
 and where the trustee and the principal debtor being devisees of the estate, with 
 the other parties interested, referred all their "claims, rights and interest in 
 said estate" to arbitration, and the arbitrators awarded a portion of the share of 
 the principal to tlie trustee, in payment of the money advanced by him as security, 
 it was held, that the arbitrators hud not exceeded their authority, and the award 
 was confirmed. [*349] 
 
 A surety paying the debt of his principal, may b' remitted to all the rights of the 
 creditor; and where separate judgments were obtained against the principal and 
 surety for the same debt, and the latter paid the judgment against himself, and 
 thereupon the sheriff entered satisfaction r n both executions, the surety will be 
 allowed to vacate the entrj* of the satisfaction on the judgment against the prin- 
 cipal, and to set it up as a lien on his estate. [*35l] 
 
 This case was heard by Chancellor Johnson, at Camden, July, 1831. 
 The bill was filed to confirm and enforce an award made between the par- 
 ties, as devisees and heirs at law of the estate of Col. Joseph Kershaw, 
 deceased, adjusting their rights, and making partition of that estate. Tlie 
 only objection to the confirmation of the award was on the part of Mrs. 
 Sarah Kershaw, the widow of Joseph Kershaw, and sole *repre- r*3^5 
 sentative of her estate. She insisted that the arbitrators had 
 exceeded their powers in assigning a part of the shares of her husband to 
 Henrietta Perkins the only surviving heir and representative of James 
 Kershaw, in satisfaction of a debt due by Joseph to James Kershaw; and 
 on this ground objected to that part of the award ; and the question for 
 the determination of the Court was, whether on the facts before them the 
 arbitrators had, in this particular, exceeded their jiowers under the sub- 
 mission. The Chancellor held that in this respect they had exceeded 
 their authority ; in all other respects he confirmed the award. From this
 
 236 SOUTH CAROLINA EQUITY REPORTS. [*345 
 
 decree Henrietta Perkins appealed and moved this Court to modify the 
 same so that the award may be entirely confirmed, on the ground that the 
 arbitrators had not exceeded their powers under the terras of the submis- 
 sion. The facts are stated in the judgment delivered by this Court. 
 
 W. F. De Saussure, for the appellant, cited and relied on the following 
 authorities: Kyd on Awards, 242; 1 Ld. Ray. 115; Kyd, 1-17-171; 1 
 Black. Rep. 475 ; Com. Rep. 547 ; 3 M'C. Rep. 487. 
 
 M''Cord, for the defendant, argued that parol evidence could not 
 enlarge or explain the terms of the submission ; and that it was received 
 to ascertain what was parcel of the submission — whether this subject 
 matter was part "of the estate of Col. Joseph Kershaw," so that the 
 whole question is, what was sul)mitted ? 
 
 This is in the nature of a bill for specific performance, Wood v. Griffin, 
 1 Swanston, 53. There is no allegation in the bill as to this claim — 
 none, that it was within the terms of the submission or that it had any 
 connexion with the estate of Col. Kershaw, which was to be divided, and 
 can evidence be admitted beyond the pleadings, and relief granted which 
 was not prayed ? But it is said the parties are bound by judges of their 
 own choice. But whether they have decided on the matters submitted to 
 them, can only appear by the submission, and if they have gone beyond 
 that they have exceeded their jurisdiction. See Digest Lib. 4, tit. 8, § I ; 
 3 Poth. 428-460,401. "One may refuse with impunity to perform an 
 *S4fiT ""J"^^ sentence, that is to say, one reudered beyond the *terms of 
 -' the submission, as where the arbitrators decide on an object other 
 than that upon which they were charged to judge," lb. The authority of 
 arbitrators is founded on the will of those who appoint them, and there 
 can be no other evidence of that will than the writing itself, Domat, 223, 
 B. tit. 14 ; Gibson v. Watts, 1 M'C. Ch. 490. And tlieir power is 
 limited to what is explained in the compromise, 1 Domat, 224, B. 1, tit. 
 14, sec. 1; 2 Evans' Poth. 180. The award must be limited to the 
 terms of the submission, Kyd, 140 ; lb. 278. And if a submission be of all 
 suits, &c., between A. and B. an award between B. and his wife, and A. 
 is void, Kyd, 146. The same doctrine is laid down in Waters u. Bridges, 
 Cro. Jac. 039 ; lb. 663 ; 2 Show, 61. An award can only be expounded 
 by itself without the aid of an averment of matters dehors to exphiin the 
 meaning, Bacon, Ab. E. And if the bond be given for a specific object, 
 general words are to be construed with reference to that object, 1 Badger 
 and Dev. N. C. Rep. 52. And as to the general authority of arbitrators, 
 and how far the award is binding, see 2 Saund. 410 ; 6 East, 507 ; 16 
 John. 166 ; 3 Mod. 177 ; 1 Ld. Ray, 235 ; 1 Bos. & Pul. N. R. 113. 
 
 James Kershaw could not claim as a trustee. It does not appear that 
 he was a trustee at the time he made this payment on behalf of Joseph. 
 It is denied that he was, but if he was, the debt he paid was in no way 
 connected with the trust estate, and the trust property can only be charged, 
 and the trustee reimbursed, for expenses incurred in the execution of'the 
 trust, 8 Ves. 8. Could Equity entertain jurisdiction of this claim ? Wiiat 
 could give it ? A lien ? How is it constituted ? Bring a bill in Chan- 
 cery for money laid out and expended for defendant's use? see Irish T. R. 
 256 ; 2 Bridg. Dig. 460. When the principal promised to assign to the 
 surety who paid the debt, but omittted to do so, Equity considers it as
 
 *3-16] COLUMBIA, JUNE, 1833. 237 
 
 done and orders it to be done ; but this arises from the understanding 
 of the parties. There was none such in this case. 
 
 James Kershaw conld have no right to Joseph's share of his father's 
 estate on the ground that he was his surety. Could he be subrogated to 
 the rights of the creditor? Subrogation is defined to be "where the 
 surety pays he may require of the creditor to substitute him to all his 
 rights against *the principal debtor or against the other sureties," r^^q^-r 
 1 Poth. Oblig. 245. After the surety has paid, if he has procured L 
 a subrogation to the rights of the creditor, he may exercise them as the 
 creditor himself might have done, but if he has neglected to acquire this 
 subrogation he has still an action at law to reimburse him," 1 Poth, 246. 
 James Kershaw did not pay the judgment of the State v. Joseph Kershaw, 
 administrator. Adamson, it is said, paid the execution against himself 
 and James Kershaw, and James paid him back his half; so far then James 
 could acquire no rights by subrogation, for this execution was no lien on 
 Joseph's estate, and as regards the payment of the other executions by 
 Adamson, and the contribution afterwards by James, Adamson neglected 
 to take an assignment and the executions are marked " satisfied" — he could 
 not now be subrogated ; and after the long neglect of twenty-five years, can 
 James Kershaw's heirs at law be entitled to subrogation against the heirs 
 of Joseph, and claim a lien on property which did not become part of 
 Joseph's estate until twenty-five years afterwards ? 
 
 O'Neall, J. It appears that Col. Joseph Kershaw in 1190 conveyed 
 the whole of his estate to five persons, of whom James Kershaw was one, 
 in trust to pay the debts of the said Joseph out of the said estate ; and 
 the residue, if any, to transfer and deliver to the said Joseph, his heirs, 
 executors or administrators. Col. Kershaw died in 1791, leaving a will 
 bearing date in 1788, which devised and bequeathed his real estate in 
 certain specified portions among his eight children, and his personal 
 estate in equal shares among his wife and children. James Kershaw 
 and Joseph Kershaw, Jr., were two of the children, heirs-at-law and 
 devisees of Col. Kershaw. Joseph Kershaw, Jr., was a tax-collector, 
 and Adamson and James Kershaw were his securities : he made default 
 and was found to be in arrear to the State $2202 99, for which sum, after 
 his death (which took place in 1791) several judgments were recovered 
 against John Kershaw, administrator of Joseph Kershaw, Jr., (deceased) 
 and against Adamson and James Kershaw, the securities of the said 
 Joseph. The whole amount was paid by Adamson, and James Kershaw 
 contributed and paid to him the one-half of the amount so *by him r*3^3 
 paid ; and the executions issued 16th January, 1805, on the judg- ■- 
 ments were returned satisfied. These transactions took place during the 
 continuance of the trust, and before the death of James Kershaw, who died 
 in 1815. It is true, that in 1794 the trustees, according to a power to 
 that effect contained in the deed, appointed John Ker.shaw their attorney 
 and general agent under the said trust deed, and he had from that time 
 the entire management of the trust estate. In 1828, all the original 
 trustees being dead, John Kershaw was substituted as a trustee under 
 the trust deed in the Court of Equity. It is alleged by the complainants 
 that James Kershaw was the surviving trustee : the defendant, however, 
 contends that Robert Henry was ; in this respect there appears to be no 
 proof on the subject whatever ; it is allegation against allegation, and
 
 238 SOUTH CAROLINA EQUITY REPORTS. [*348 
 
 no conclusion can be drawn from either — Sarah Kershaw is the widow 
 and the only surviving heir or representative of the estate of Joseph Ker- 
 shaw, Jr., (deceased) ; Henrietta Perkins, from the award, seems to be 
 the only surviving heir and representative of the estate of James Kershaw, 
 (deceased). The arbitrators to whom were referred " all the claims, 
 interests and rights of the heirs of the late Col. Joseph Kershaw, in his 
 estate,'''' undertook to charge the estate of Joseph Kershaw, Jr., ascer- 
 tained and separated by their award from the rest of the estate of Col. 
 Joseph Kershaw, with the payment of the debt to James Kershaw, on 
 account of the amount paid by him as security for the said Joseph Ker- 
 shaw, Jr , by awarding to Henrietta Perkins, as the representative of 
 James Kershaw, (deceased), 13-81 of the 32-81 parts of the estate of 
 Col. Kershaw, which constituted the share of the said Joseph Kershaw, 
 Jr., and to his widow Sarah the remaining 19-81 parts. From the death 
 and minority of some of the parties, it became necessary to have the award 
 confirmed by the Court of Equity. Accordingly a bill was filed for that 
 purpose. Mrs. Sarah Kershaw objected to tlie confirmation of so much 
 of the award as set up the debt due by her husband's estate to James 
 Kershaw, and vested in Henrietta Perkins' 18-81 parts of the estate of 
 Col. Kershaw out of the share to which Joseph Kershaw, Jr , was enti- 
 *^iQl ^^^*^' ^'^ satisfaction of the said debt, on *the ground that the arbi- 
 -• trators had exceeded the submission. This objection was sustained 
 by the Chancellor, and that part of the award set aside ; in all other 
 respects it was confirmed. From this decree Henrietta Perkins has 
 appealed, on the ground that the arbitrators did not exceed the submis- 
 sion in awarding as they did. 
 
 The submission by the heirs of Col. Joseph Kershaw, deceased, is in 
 as general terms as it could well be couched — it is " all our claims, inte- 
 rests and rights in the said estate." This covers everything which could 
 in any way be connected with, arise out of, or spring from the estate of 
 Col. Kershaw. To see whether the arbitrators, in making up their award, 
 have exceeded their powers under this general submission, it is necessary 
 that we should have evidence of the facts, which, as they supposed, autho- 
 rised them to make the award which they did. This is not evidence in expla- 
 nation of the award ; but it is evidence to show whether it is or is not an 
 award binding on the parties. It ascertains whether the thing awarded, 
 which may or may not be within the submission, is within its terms and 
 intention. The facts which have been already stated were either in proof 
 before the arbitrators, or within their knowledge. Upon them they 
 passed and made the award, which is now the subject of complaint. The 
 single inquiry is, had they the right, on the facts before them, under the 
 submission, to make the award ? Whether right or wrong, is not now to 
 be investigated. If it was within the submission, it is not pretended that 
 any ground exists upon which the award can be set aside. 
 
 Since the able and ingenious re-argument of the defendant's counsel, I 
 have gone over my former views of the case, and have compared his argu- 
 ments with tlie facts of the case, and the views of the case heretofore ex- 
 pressed by this Court, and I confess that I have been able to discover no 
 ground upon which the Chancellor's decree ought to be sustained, and 
 the award set aside. 
 
 James Kershaw, who was one of five trustees in whom the legal estate
 
 *349] C0LU3IBIA, JUNE, 1833. 239 
 
 in the whole of Col. Kershaw's estate was vested, was the seonrity of 
 Joseph Kershaw, Jr., and in 1805 paid *for him the sum of money r^rjrp, 
 now claimed to be refunded. He had the right to l)c refunded L 
 this sum before his legal title could be devested — for it must be recollected, 
 that at law the cestui que trust could have had no remedy — it is alone in 
 Equity that he could have claimed the execution of the trust ; and I can 
 not be persuaded that it ever was doubted, that Equity in decreeing the 
 execution of the trust would secure one of the several trustees, for all 
 sums of money which he had been legally compelled to pay his cestui que 
 trust estate. Taking this to be true, what were the claims, interests and 
 rights in Col. Kershaw's estate," to which Joseph Kershaw, Jr., was 
 entitled ? I answer, that it is clear that his claims, interests and rights, 
 were his share charged with the debt paid for him by his trustee, as his 
 security. In other words, that share could not be taken out of the pos- 
 session of the trustee, until that payment was made to him. This is 
 compelling a party who asks for equity, to do equity, and it is on this 
 principle that the whole doctrine of a lien of a trustee for advances is 
 predicated. But if I understand the argument, it is contended that 
 James Kershaw never was entitled to act as a trustee after '94, when 
 John Kershaw was appointed the attorney of the trustees. There can, 
 however, be nothing in this proposition. It would, to give it elTect, be 
 making the attorney superior to the principal — the created greater than 
 the creator, and power delegated, irrevocable. John Kershaw's acts 
 were, however, the acts of each and all the trustees. They and each of 
 them were bound by whatever he did — still, however, the estate was in 
 them ; and it was against them, and not their attorney, that the cestui que 
 trust must have proceeded to have the trust decreed. Neither can the 
 substitution of John Kershaw, in '28, as trustee, by the order of the Court 
 of Equity, change the rights of the parties — it is true, the legal estate is 
 then vested in liim, but he holds it subject to all the equities existing 
 between the original trustees or any of them, and the cestui que trusts or 
 any of them. The question, whether Joseph Kershaw's share of his 
 father's est^ate ought to be charged with the payment to James Kershaw 
 of the money paid by him, as his security, according to the views which I 
 have *suggested, was necessarily to be decided upon by the arbi- r:)c35]^ 
 trators under the submission. 
 
 There is, however, another consideration, which to my mind, is conclu- 
 sive to show the authority of the arbitrators to award as they did. The 
 security, who pays the debt of his principal, has the right to be remitted 
 to all the rights and securities of the creditor. He is in Equity substi- 
 tuted for the creditor. The debt to the State was a judgment again.st 
 the administrator of Joseph Kershaw, deceased. In Equity the securi- 
 ties, upon showing that they, and not the administrator, paid the money, 
 would be allowed to vacate the entry of satisfaction on the execution by 
 the sheriff as made by mistake, and to set up the judgment as a subsisting 
 lien on the real estate of Josejih Kershaw, Jr., deceased. The proof is 
 clear, that Adamson first paid the entire debt, and that subse(iuently 
 James Kershaw paid to him one moiety. The executions against them 
 were properly returned satisfied, l)ut that 'against the administrator of 
 Joseph Kershaw, Jr., deceased, was improperly so returned ; and James 
 Kershaw, for the amount paid by him or his representative, hud the right
 
 240 SOUTH CAROLINA EQUITY REPORTS. [*351 
 
 to claim that the entry sliould be set aside and the judgment set up for 
 the amount due to him, as a lien on Joseph Kershaw, Jr. 's, estate. This 
 was in effect done by the arbitrators, when they ascertained that 32-81 
 parts of Col. Kershaw's real estate belonged to Joseph Kershaw, Jr., 
 and of course descended to his heirs, and when they set up the moiety of 
 the judgment paid by James Kershaw, as a subsisting lien, and having 
 ascertained the amount due, appropriated 13-81 parts to the payment. 
 This award was, I think, within the submission, and I am not disposed to 
 scan, with great nicety, the decision of men who were the friends of the 
 parties, and intimately acquainted with the affairs which they were called 
 upon to adjust, and which, from the death of the parties and lapse of time, 
 could be only justly arranged by the domestic forum of arbitration, which 
 acts according to good conscience and not by technical rule. 
 ^oKni *It ^s therefore Ordered and decreed, that so much of the Chan- 
 -1 cellor's decree as sets aside that part of the award vesting in 
 Henrietta Perkins' 13-81 parts of the estate of Col. Kershaw out of the 
 share of Joseph Kershaw, Jr., be reversed, and that the said award be 
 confirmed entirely. 
 
 Johnson and Harper, Js., concurred.
 
 CASES IN CHANCERY 
 
 ARGUED AND DETERMINED IN THE 
 
 COURT OF APPEALS OF SOUTH CAROIIXA. 
 
 Columbia — ^cambtr, 1833, mxb lamiarg, 1834. 
 
 JUDGES PRESENT. 
 
 Hon. DAYID JOHNSON, Presiding Judge. 
 Hon. J. B. O'NEALL. I Hon. WILLIAM HARPER. 
 
 Ex parte, R. B. Wiggins. 
 
 Where a trustee purchase at his own sale it is at the option of the parties interested 
 without any inquiry into the circumstances, to have a resale, or to hold the 
 trustee to his purchase. If they elect to have a re-sale, the course is to put the 
 property up at the price bid by the trustee — if more is bid at the second sale the 
 property is resold — if not, the trustee is held to his purchase: And such a sale is 
 not less the sale of the trustee, because made under the order of the Court and 
 superintendence of the Commissioner, when procured at his instance. ['*'354] 
 
 A bill having been filed by the assignees of Baker Wiggins, against 
 his heirs and creditors to marshal his assets, the Court ordered a sale of 
 his real estate by the Commissioner, under the superintendence of the 
 assignees, who were directed to join in the conveyance to the purchaser. 
 At this sale R. B. Wiggins, one of tlie assignees, became the purchaser 
 of the whole estate, and afterwards filed this ^petition to confirm r^oci 
 the sale. The Commissioner, to whom it had been referred, L 
 reported that the sale was fairly conducted — that the purchase was bona 
 fide, and for an adequate consideration ; and that the petitioner was- a 
 creditor of Baker Wiggins. 
 
 Chancellor Johnston, who heard the petition, at Marion, February 
 Term, 1833, held, that the purchase "could neither be set aside nor con- 
 firmed, without knowledge of the will of other persons interested, who 
 are not parties to this proceeding." That "according to decided cases, 
 a trustee to sell cannot purchase, whether he is partly interested or not. 
 If he purchases, the sale will be set aside, or he will be held to the pur- 
 chase, as of course, at the option of the parties interested ; and as the 
 rule forbidding such purchases, is one of policy to prevent fraud, when 
 there is no possibility of proving it, the inquiry is never made, whether 
 Vol. I.— 16
 
 242 SOUTH CAROLINA EQUITY REPORTS. [*354 
 
 the sale is or is not advantageous." He therefore dismissed the petition, 
 and the petitioner moved this Court to reverse his decision, and to confirm 
 the sale. 
 
 JDargan, for the appellant. 
 
 Harper, J. I concur with the Chancellor, that "a trustee to sell 
 cannot purchase, whetlier he is partly interested or not. If he purchases, 
 the sale will be set aside or he will be held to the purchase, as of course, 
 at the option of the parties interested." I also concur that the sale 
 " cannot be set aside or confirmed, without knowledge of the will of other 
 persons interested, who are not made parties to this proceeding." It 
 appears however to be matter of much interest to all the parties concerned 
 that this estate should be finally closed, and perhaps it may be in our 
 power without irregularity, to facilitate the doing of this, by directing the 
 persons interested to be made parties to the proceeding and ascertaining 
 their will. 
 
 I believe the principle laid down by the Chancellor to be fully settled, 
 that where a trustee purchases at his own sale, it is absolutely at the 
 option of the parties interested, without any inquiry into circumstances, 
 to have a re-sale, or to hold the trustee to his purchase. If they elect to 
 ^^^-, have a *re-sale, the course is, that the property should be put up 
 -I at the price bid by the trustee. If more is bid at the second sale, 
 the property is re-sold ; if not, the trustee is held to his purchase. I am 
 satisfied, too, from looking into the cases, that it is at the option of any 
 portion of the creditors or persons interested, or any individual of them, 
 to have a re-sale. The cases, ex parte Hughes, 6 Ves. 824 ; ex parte 
 Lacey, 6 Ves. 625 ; ex p)arte Bennet, 10 Ves. 381, are sufiicient to estab- 
 lish the rule, that without any inquiry into circumstances, the sale shall 
 be avoided at the election of the parties. In all of these cases too, the 
 course was to put up the property at the price bid by the trustee, (with 
 the value of improvements, where improvements had been made) and if 
 no more could be got, to affirm the trustee's purchase. In Morse v. 
 Royal, 12 Ves 372, the Chancellor says in relation to such a purchase, 
 that without any consideration of fraud, or looking beyond the relation 
 of the parties, that contract is void." In Campbell v. Walker, 5 Ves. 
 678, where application was made on behalf of infants to set aside such a 
 sale, a reference to the master was ordered to ascertain whether it would 
 be for their benefit. Being infants, it might devolve on the Court to 
 elect for them Otherwise, the late cases establish that the right of 
 choice is absolute in the parties without inquiry. 
 
 In Whelpdale v. Cookson, , Lord Hardvvicke left it to the 
 
 majority of the creditors to elect whether the property should be re-sold. 
 But in ex parte Lacey, Lord Eldon expresses his dissent from the opinion 
 of Lord Hardwicke, and doubts whether a majority of creditors can bind 
 the minority. And in a note to that case, tlie Reporter refers to the 
 cases, ex X)arte Tanner, ex parte Attwood, and Owen v. Foulkes, decided 
 about the same time, in which the Chancellor repeated the principles and 
 declared the general rule, that no trustee shall buy unless he strii)S himself 
 of that character, or by universal consent. In ex parte James, 8 Ves. 
 337, the trustee had satisfied all the principal creditors, and obtained
 
 *355] 
 
 COLUMBIA, DECEMBER, 1(S33. 243 
 
 their acquiescence or purchased their claims, 3-et tlie purcliase was set 
 aside at the instance of a simple creditor, the petitioner. In Davoiie v. 
 Fanning, 2 Johns. Ch. Ca. 252, *Chancellor Kent reviews all the |-^.,, 
 cases, and comes to the conclusions I have before expressed — L " * 
 that it is absolutely necessary at the election of the creditors or parties 
 interested to set aside such a sale — or of any individual creditor or 
 party — and that the course is to put up the property at the ])rice bid Ijy 
 the trustee, and hold him to his purchase if more cannot be got. 
 
 It was argued that this was not a sale by the trustees, as it was made 
 by the order of the Court and superintended by the Commissioner. The 
 bill was filed by the assignee to marshal the assets and settle the estate. 
 The sale I suppose was made at his instance, and was not less his sale, 
 because made with the concurrence and under the superintendence of the 
 Commissioner. It is not merely against unfairness in the actual con- 
 ducting of the sale, that the principle is intended to guard. The t ases 
 suppose, that in consequence of his connexion with the estate as trusiee, 
 he may have acquired important information as to its value — such as the 
 existence of mines — which the Court can never be sure he has fully com- 
 municated, and no one undertaking to act for the' benefit of others, s'lall 
 be permitted to act for his own advantage in the same matter. Ex parte 
 Lacey, 6 Ves. 625; ex x^cbrte Bennet, 10 Ves 381. 
 
 It is ordered that the petition be referred back to the Commissioner to 
 inquire and report to the next sitting of the Circuit Court, whether any 
 of the creditors or parties interested desire a re-sale of the land in ques- 
 tion, and that the said creditors and parties be notified to attend beiore 
 the Commissioner at a time appointed by him for that purpose ; that if 
 any of the said creditors or parties shall require such re-sale, the sa'd 
 land shall be again exposed to sale, at such time and on such terms as 
 the Circuit Court shall direct, and put up at the price bid for the same 
 by the petitioner ; but if none of the said creditors or parties shall require 
 a re-sale, or if upon being again offered for sale, no greater price shull be 
 offered than that heretofore bid by the petitioner for the said land, then 
 that the petitioner's purchase be confirmed. 
 
 Johnson and O'Neall, Js., concurred. 
 
 *JoHN Bankhead, Administrator de bonis non cum test. ann. 
 
 of GiDEOX Glenn, v Thomas A. Carlisle, Administrator [*3r7 
 de bonis non cum test. ann. of James Glenn. 
 
 Testator by his will, devised bis estate to his wife, during widowhood, and rlu-n 
 adds, "which said property I wish and devit^e, at the marriage or death m my 
 wife, to be equally divided amongst my cljildren as above named;" 0., one vi ttio 
 testator's sons there named, survived him, but died before the widow:— /MA Ibat 
 this was a vested remainder iu G, and his represent itives are entitled to Ins 
 share. (tt) [*o5S] 
 
 JonNSTON, Chancellor. James Glenn, of Chester, in this State, by ttic 
 (a) See Cole v. Creyon, ante, 322. — R.
 
 244 SOUTH CAKOLIXA EQUITY REPORTS. [*357 
 
 first ten clauses of his will, gave specific legacies to his ten children, by 
 name, of whom Gideon Glenn was one. The eleventh clause relates to 
 the education of two of his sons. The twelfth clause is as follows : "J 
 lend to Elizabeth Glenn, my beloved wife, during icidoivhood, (or life, in 
 case she does not marry) all my estate, real and personal, not stipulated 
 as aforesaid, consisting of a tract of one hundred and fifty acres of land in 
 Union District, and State aforesaid, on Broad River ; one other tract of 
 one hundred and fifty acres of land, in Chester District and State aforesaid, 
 on Broad River, being the place whereon I now live ; also eleven negroes, 
 namely, Aaron, Esther, Mary, Mourning, Age, Samuel, Cato, Pompey, 
 Jesse, Jacob, and Milley, with their increase, if any they should have ; 
 also all my stock of horses, cattle, sheep, and hogs ; which said property I 
 v:ish and devise, at the marriage or death of my beloved wife, to be equally 
 divided amongst my children, as above 'named, with one exception, rela- 
 tive to [the] dividend or share, falling to my beloved daughter, Hannah 
 Carlisle, which is, I lend to her such dividend or share, during her life, 
 and at her death, to go to the heirs of her body." 
 
 The testator's son Gideon survived him, but was survived in his turn, 
 by the testator's widow, who continued discovert until her death. On 
 her death, the original executors of the testator being dead, the defendant 
 took out letters' of administration de bonis non, with the will annexed; 
 and possessed himself of so much of the personalty in which she had the 
 life interest under the will, as remained, or he could find ; and has de- 
 clined to account to the plaintiff, for one-tenth of it, which he claims, as 
 the administrator de bonis non with the will of Gideon Glenn annexed. 
 The bill is filed among other things, to compel such account. 
 *9-o-i The plaintiff also claims an account of a share of Newton* 
 "^ -I Glenn, another son of James Glenn, — stating that by Newton's 
 death he became entitled to it ; but in what way, the bill does not inform 
 us. The only question argued before me, is, therefore, the only one I am 
 to decide, and relates to the interest which Gideon took in the personal 
 property under the twelfth clause of his father's will. The plaintiff con- 
 tending that he took a vested remainder, which was not lost by his dying 
 before his mother ; the defendant, that his was a mere contingent interest, 
 which lapsed by his death, before the happening of the event on which 
 its vesting depended. 
 
 The will, in point of form, does not limit over the property to the tes- 
 tator's children, on their mother's death or marriage, but merely directs, 
 that on the happening of that event, it be equally divided among them. 
 Yet I think the direction to divide it among them, substantially includes 
 a bequest of it to them. Gideon, by surviving the testator, was in a con- 
 dition to take under the will, whatever passed by the will. The will gave 
 him a portion of the property, with a direction that it be allotted to him 
 on his mother's death. He could have taken it the day of his father's 
 death, and was withheld only by the preferable right of enjoyment, which 
 the will conferred on his mother. Nothing but that prevented him. 
 Here then was a present capacity to take whenever the possession should 
 become vacant. This is the test of a vested interest — and an interest 
 vested, is not lost by the dying of the person in whom it exists, before 
 the period of its being actually enjoyed, — that only transmits it, in the 
 case of realty, to his distributees or legatees, and in the case of personalty,
 
 *358] COLUMBIA, DECEMBER, 1833. 245 
 
 to his representative. The cases relied on by the defendant's solicitors, 
 were founded on wills wherein the testators had limited remainders to 
 such of their children as should be alive at the termination of the par- 
 ticular estates. Some of their children had died before that event, but 
 left children, who claimed to stand in the place of their parents. What 
 is the effect of these cases? The grand-children claimed as devisees 
 themselves, and not as the distributees of the devisees. They claimed 
 instf-ad of, and not through, their ^parents. Their position was, r^q-q 
 that a devise to children living at the happening of the contin- L ^"^ 
 gency, was a good devise to grand-children, then living. That "children" 
 should be construed to extend to and mean grand-children also, and that 
 of course, grand-children "then living," would come within the descrip- 
 tion of the testator, and were in fact, devisees. Why were the grand- 
 children driven to take this position ? If they could have claimed suc- 
 cessfully under or by transmission of rights through the parents, it would 
 have been as beneficial to them. But if they had claimed in that way, it 
 would have resulted, that no rights ever vested in their parents, in order 
 to be transmitted to themselves. Why not ? Because their parents were 
 never, in fact, devisees. The devisees were such children, and such only, 
 as should be living at the happening of the contingency. Such was the 
 description given in the will. Who should answer to -that description, 
 could not be known until the contingency happened. The devisees were 
 made, as it were, ambulatory until that time ; and the state of affairs 
 which presented itself then, for the first time, disclosed who the devisees 
 really were. The children who had died in the meantime were not 
 devisees, and no right was transmitted through them. 
 
 But we gather from this an inference even favorable to the plaintiff in 
 the case at bar. The parents of the grandchildren were excluded, not as 
 children of the testator, because in that respect, they came witliin his 
 description — but because they fell short of his description, in another 
 particular : they were not living at the event pointed out by him. If 
 they had been " then living," their rights would have been good — and 
 they were excluded only I)y the force of the words " then living." 
 
 In the case at bar, Gideon came within the description of a "child 
 above named," and there is no description given to which he does not 
 answer, so as to exclude him. The plaintiff is entitled to the account he 
 claims. This is not, however, a case for costs. The parties have come 
 here bona fide to settle what to them was a doubtful question. 
 
 *It is decreed that the defendant account to the plaintiff" before r*3gQ 
 the Commissioner, touching the personal property received by 
 him, or for which he is chargeable. The parties to pay their own costs 
 to be allowed them out of the estates which they respectively represeiit, 
 if suflScient. — When the Commissioner's report comes in, the decree will 
 be pronounced for the amount. The remaining equities under the bill 
 are reserved, until the expiration of the next Term ; unless the plaintiff 
 shall in the meantime discontinue as to them. The further costs to 
 arise out of their prosecution, are not included in the foregoing decree as 
 to costs. 
 
 From this decree the defendant appealed on the ground : That from 
 the words of the clause in the will of James Glenn, the property did not
 
 246 SOUTH CAROLINA EQUITY REPORTS. [*360 
 
 vest in his children until the death of his widow, and Gideon Glenn having 
 died before that time, his representatives cannot take under the will. 
 
 Thomson and Dawkins, for the appellant, referred to 2 Salk. 415 ; 
 Farr v. Blair, and Gordon v. Sims ; MSS. cases ; Columbia. 
 
 Williams, contra, cited 3 Eq. Rep. 273; 2 Rob. on Wills, 112; 
 Fearne, 149, 150 ; 2 Con. Rep. 91. 
 
 Fer Curiam. We concur with the Chancellor, for the very satis- 
 factory reasons stated in his decree. 
 
 W. H. Fraser v. Thos. Boone and Wife. 
 
 Where there are twoinconsistentbequests of the same property in the same will, the 
 second revokes the first: and where the testator, by one clause of his will 
 bequeathed a slave to his son, remainder to his issue, and fiiiling in issue, 
 remainder over; and by a subsequent clause bequeathed the same slave to his 
 daughter, with like limitations:— i/eW, that the clauses were inconsistent, and the 
 last revoking the- first, that the daughter was entitled to the legacy. [*307] 
 
 Bill for account and partition, at Sumter, February, 1831. 
 
 The only question considered by this Court, was as to the effect of two 
 inconsistent clauses of a will bequeathing the property to different 
 legatees. 
 
 John B. Fraser, the father of Mrs. Boone, in his will dated 18th May, 
 *^R11 ^^^9' bequeathed by the fifth clause of the same, a *negro man 
 -' George with other slaves, to William Hickman Fraser, the plain- 
 tiff " for his natural life, and at his death to the lawful issue of his body, 
 and if he should die without lawful issue living at the time of his death, 
 then in that case remainder to the surviving brothers or sisters, or brother 
 or sister of the said William Hickman." And with a further provision, 
 that in case any of the brothers or sisters should die in his life-lime, 
 leaving issue of their body, living at the death of the said William Hick- 
 man — such issue to take the share which the parent would have taken 
 had they survived the said William Hickman. 
 
 By the sixth clause of the same will, the testator bequeathed to his 
 daughter Jane Baxter Fraser, the same negro George with other slave, 
 &c., — to her for her natural life, and in case of her death, with the same, 
 limitations over in favor of her issue, brother and sisters, and their issue 
 as are contained in the fifth clause — the very same words are used, as 
 repeated over again in this clause. 
 
 Robert Fraser, one of the executors, qualified on the will, the 5th of 
 June, 1820, and Jane Baxter Fraser, wife of the defendant Boone, quali- 
 fied sometime after, on 31st Dec, 1821. On the 1st Dec, 1828, the 
 plaintitf filed his bill, claiming, that although the testator had bequeathed 
 by distinct and separate clauses the said negro George, first to himself 
 and afterwards to his sister, they took a joint bequest in the said negro. — 
 That she had intermarried with the defendant, Thos. Boone, who had 
 refused to recognise his claim, he therefore prayed that the slave might
 
 *361] COLUMBIA, DECEMBER, 1833. 247 
 
 be sold and the avails divided. The defendant, Thos. Boone, in answer, 
 admitted the marriage, and that he had the negro George in his pos- 
 session thus bequeathed, but contests the coustructiou put by the plaintill" 
 on the will. 
 
 Johnston, Chancellor. The defendants contend that the latter clause 
 supercedes the former, and that they being entitled under it have a right 
 to the slave George, giving to them in it, in exclusion of the plaintiff, 
 who claims under the superceded clause. 
 
 The doctrine is plainly laid down in the older authorities, that a sub- 
 sequent clause in a will shall prevail over a prior clause. But it was 
 said by the plaintiff's counsel, Mr. *Blanding, that although the r*3g2 
 older authorities are to this effect, the Courts have subsequently ^ 
 come to a conclusion, that in such cases the clauses shall stand together. 
 Upon looking at the authorities quoted, and others, I find that they use 
 the language attributed to them. 
 
 They argue that although the last of two wills supercedes the first, yet 
 that there is a want of the analogy supposed by the early authorities 
 between the cases of two wills, and the cases of two clauses of the same 
 will. Swin. part 1, ch. 21. That in the case of two wills, the testator 
 assents to them separately, and that to which he last assents is his last 
 will : but that in the case of two separate clauses of the same will, he 
 does not assent to either before the other, but to both together as an 
 unity, after finishing the whole will. 2 Atk. 314. That he does not 
 assent to the clauses of the will, as clauses, but to the whole will con- 
 sisting of clauses. 3 Atk. 493. That it is true, that in revolving in his 
 mind the subjects embraced in the will, he can only give them a succes- 
 sive consideration ; but that the assent which he gives, after all the 
 details are arranged, is the only evidence we can have that he intended 
 the paper to stand as his will. That in assenting he has contemplated 
 the provisions as a whole, not only separately but in their relation to 
 each other, and pronounced his work good That the power to do this, 
 is what is called a sound and disposing mind and memory. 
 
 The case was argued before me on the same point, and in the same 
 way. Upon looking at the authorities I confess I was struck with the 
 plausibility, and at first came to the conclusion that the old doctrine had 
 been over-ruled. But further reflection has satisfied me that properly 
 understood, and as to cases where it has a real application, it has not 
 been. And I am further satisfied that in the cases and authorities where 
 the arguments were used which I have recited, the question which, from 
 the language held, appeared to have been settled, never occurred ; and 
 that in them, as in this, an immaterial question was argued. 
 
 The ancient doctrine properly understood, is not that all subsequent 
 clauses shall prevail over the prior clauses embracing the same sultjects 
 of disposition. But it is, that where a subsequent clause either directly 
 in terras repeals a former, *or contains provisions so inconsistent r*3g3 
 with it, that it cannot stand with it and by implication repeals it, 
 it shall prevail over it. 
 
 Now the reason given by the authorities referred to, why the clauses 
 should prevail together, is that the testator has assented to both together, 
 and to one as well as to the other ; and that reason is a good one where
 
 248 SOUTH CAROLINA EQUITY REPORTS. [*363 
 
 it can apply, as for instance, where the clauses can be made to stand 
 together. JBut will any body contend, that when a testator has said in a 
 subsequent clause, " whereas I bequeathed so and so in a prior clause, 
 now I do hereby revoke the legacies and give them to other persons" — 
 that in such a case the legatees shall concur and both the clauses stand, 
 simply because the testator assents to his M'hole will at once ? Yet the 
 reasoning goes that length. If the repeal is indirect, by reason of incon- 
 sistency or incongruity, is it not as much a repeal as if it were a repeal 
 in direct terms ? The Court, to be sure, would be bound to let the 
 former clause stand, if by any construction it could be made to stand. 
 But if after resorting to all the sound rules of construction the clauses be 
 found too incongruous to prevail together, the latter must be regarded as 
 a repeal of the former, notwithstanding both may have been apparently 
 assented to at the final execution of the will. 
 
 Accordingly the cases in which the authorities seem to consider the 
 old doctrines overruled, are cases where in fact it never applied, and 
 where the question really ought to have been, whether the prior clauses 
 could be made to stand with the subsequent, or whether the latter were 
 not so inconsistent with the former as to indirectly repeal them. Let us 
 resort to this inquiry. 
 
 Where the conflict is merely between detached words or phrases in a 
 testamentary paper, the rule is to bring the conflicting phrases and 
 words together, and ascertain how the testator intended his expressions 
 thus scattered to affect and modify each other : and in doing this I am 
 not aware that I am warranted in saying that it was ever held, but I 
 incline to believe, that if it be found, that if effect cannot be given to all, 
 those must be rejected which are first in order. But that if by modifi- 
 *Rfii1 cation any effect can be given to them, it must be *given, and that 
 -^ thus modifying each other the whole* of the expressions will be 
 taken together, as an exponent of the testator's intention. This is a 
 rule of construction. I know of no reason why the rule of construction 
 should be different where the conflict is between detached clauses, from 
 what it is where the conflict is between detached expressions. 
 
 In this rule by which detached and conflicting expressions are brought 
 together for construction, there is a real want of analogy between the 
 cases of two wills, and the different parts of the same will ; although the 
 want of analogy on the point of assent was, I think, a mere supposition. 
 "Where there are two conflicting wills there is never any attempt to bring 
 them together for the purpose of reconciling them, but the latter always 
 operates to the extent of the difference between them, as a direct repeal 
 of the former. It is different where the several parts of the same will 
 conflict. 
 
 Let us now bring the two clauses of this will in question, together, and 
 see if there be any difficulty. There would have been no difficulty, if the 
 testator, making use of only one clause, had said, " I give my slave 
 George to my son William and my daughter Jane B.," limiting over the 
 share of William, so and so, and the share of Jane in another way. If 
 he had, making use of only one clause, said, " I give my slave George to 
 my son William — and I give my slave George to my daughter Jane B." 
 &c., would this, although more at length, have amounted to any thing 
 more than filling out the words understood in the sentence I have just
 
 *364] COLUMBIA, DECEMBER, 1833. 249 
 
 before put into his mouth ; which, thougli omitted in that sentence, are 
 really referred to by the copulative conjunction ? Would it have 
 amounted to any thing more or less than a gift of George to the one and 
 to the other of his children — that is, to both ? Now if this would have 
 been the undeniable effect of usiug such expressions in one clause, is 
 there any magic to change that effect, in his employing two clauses 
 instead one ? 
 
 It was argued by Mr. Mayrant, for the defendants, that the limitations 
 over made the bequests inconsistent — that the clauses could not stand 
 together, on that account ; and that the latter clause must be preferred. 
 If the limitations over *are so inconsistent in enjoyment, that they r>|cof.c 
 cannot stand together, or with the interests of the particular lega- •- 
 tees, there is no reason that the particular legatees should not be made 
 to concur until the time that the limitations shall cometotake effect. If 
 then they cannot be brought to concur, a partition by sale would be 
 ordered, or the question would then arise between the two clauses, as to 
 the preference to be given to them. 
 
 But I see no such incongruity as is supposed. The respective 
 remainders limited over, are precisely of the same extent as the par- 
 ticular estates to which they are attached. One line of remainder-men is 
 entitled to what is given to the plaintiff, and another to what is given 
 to Mrs. Boon. Although the plaintiff and Mrs. Boone are jointly 
 interested, yet upon the death of either, that tenancy is severed, and the 
 remainder-men of his or her line become entitled to his or her share. 
 They may, if they please, concur in the enjoyment, as tenants in common 
 with the survivor ; or if they cannot concur, they can have partition by 
 sale. 
 
 If was argued, again, that the subject-matter of the bequest could not 
 be enjoyed by more than one, and that, therefore, the legatees could not 
 concur. That I do not perceive. A slave may be hired out, or he may 
 labor for the joint benefit of a plurality of persons. But there are cases 
 in which a joint enjoyment of the legacy cannot obtain. What then ? 
 If the legatees cannot concur, they must partition by sale. But the 
 objection is too extensive. I will take the strongest case put by the 
 counsel. Suppose that the Pitt diamond, or some exquisite painting, be 
 given to two persons in two different clauses of a will. If it be contended 
 that the latter clause shall prevail over the former, it must be on the 
 ground that the bequest is not susceptible of joint-enjoyment. If that 
 reason be allowed to prevail, upon the same reason, if such legacy were 
 given to the same persons in the same clause, it must be declared void, 
 or the will must be violated by awarding to one of them in exclusiou of 
 the other. 
 
 I appi'ehend, that in sueh a case (and so also in this *case) r^ggg 
 unless the legatees can be brought to concur in the enjoyment or 
 disposition of the article bequeathed to them, it must, being incapable of 
 division, be sold, and the avails distributed. It is no argument against 
 this, to say, that an article, whose chief value consists in taste, would be 
 sacrificed by sale. That is a matter exclusively for the consideration of 
 testators, and for the reflection of legatees. — The same difficulty would 
 exist, whether it be disposed of in two clauses of a will, or in one only. 
 Nor do I see reason to fear sacrifices. Granting that besides the legatees
 
 250 SOUTH CAROLINA EQUITY REPORTS. [*366 
 
 the whole community did not contain one individual of taste, to appre- 
 ciate the legacy, I imagine the legatees themselves would prove com- 
 petitors to each other, to the extent of the value they set on it ; and that 
 neither would suffer himself to be deprived of it, until he received a price 
 at least as gratifying. 
 
 I must, therefore, conclude in favor of the plaintiff's construction of the 
 will. 
 
 It is ordered and decreed, that the defendants do deliver up the slave, 
 George, the subject of this suit, to the Commissioner, who shall, at Sumter 
 Court House, on the first Monday of the next month after he shall have 
 received him, or on the first convenient sale day thereafter, after having 
 given as least fifteen days public notice thereof, to proceed to sell him, on 
 a credit of one year, taking bond with good personal security, and a 
 mortgage of the slave, to secure the purchase money. — That upon the 
 collection of the proceeds of the sale, the one-half thereof be paid to the 
 plaintiff, to be held by him subject to the same limitations and conditions 
 as those upon which the said slave was bequeathed to him by the will of 
 John B. Fraser ; and that the other half thereof be paid over to the 
 defendant, Thomas Boone, in right of his wife, Jane B., to be held sub- 
 ject to the same limitations and conditions as those on which the said 
 slave was bequeathed to the said Jane B., by the will of the said testator. 
 
 And it is further ordered and decreed, that the said Thomas Boone do 
 pay the costs of this suit. 
 
 From this decree the defendants appealed, on the grounds : 
 j^q/.h-i 1. *Because, where there are inconsistent clauses of a will dis- 
 -l posing of the same property, the last is a repeal of the first. 
 
 2. Because the limitations contained in the two clauses of the will 
 render them inconsistent and incongruous with each other, and the last 
 ought to operate, for this reason, as a repeal of the first. 
 
 3. Because, in order to give effect to both clauses, the decree defeats 
 the interest of the remainder-men. 
 
 W. and C. Mayrant, for the appellant, 
 
 Blanding, contra. 
 
 Johnson, J. I have entertained very great doubts about the leading 
 question in this case, and I confess that the very able argument of the 
 Chancellor, in support of the view which he has taken, has, in some sort, 
 shaken the confidence in the early and abiding impression made on ray 
 mind, by the maxim of Lord Coke, that " the first grant and the last will, 
 is of the greatest force." The question, so far as I know, is open in our 
 own Courts ; and the great diversity of opinion on the subject, leaves the 
 Court at liberty to adopt that rule which is most consistent with sound 
 policy, and the general principles of law. The annotator of Lord Coke 
 says, " that there is great contrariety in the books, on the effect of two 
 inconsistent devises in the same will. Some hold, with Lord Coke, that 
 the second devise revokes the first. Plow, 541, note ; others, that both 
 are void on account of repugnancy, (Ow. 84) ; but that the opinion of 
 the greatest number of authorities is, that the devisees shall take in 
 moieties." Co. Lit. 112, b note, 144. 
 
 The question is simply one of construction. What did the testator
 
 *367] COLUMBIA, DECEMBER, 1833. 251 
 
 intend ? and the difficulty consists in tlie selection of the proper rule. 
 That adopted by the Cliancellor has for its support ai)parent ocputy ; but 
 that is opposed, according to my view of it, by the consideration, that in 
 the universal application, inequality would be produced. To illustrate 
 this, I would take the case put by the Chancellor, of the family picture, 
 and suppose that it had been given in one clause of the will to a stranger, 
 and *in another to a near and much valued relation. In the r:)jqRQ 
 canvass itself there is no intrinsic value, and if the stranger takes L 
 the entire thing, he gets nothing of value ; if the relative, he gets that 
 which to him is invaluable, no price would purchase it. If it be sold for 
 partition, the stranger takes advantage of the better feelings of the rela- 
 tive, and forces him to pay a great price for the one-half of that which 
 would be worth nothing to the stranger. And the same inequality would 
 arise, m a greater or less degree, in the bequest of almost everything 
 incapal)le of a partition in specie. 
 
 In resolving a question of doubtful intention, the Court ought to adopt 
 that conclusion which is the most reasonable and probable ; and I think 
 I may refer to the experience of every member of the profession, to sup- 
 port me in the position, that no case has occurred, in which, judging 
 from extrinsic circumstances, a testator intending to divide his property 
 between two or more, has given the whole to each severally. The terms 
 necessary to express the intention are so common-place and familiar, that 
 no testator or scrivener, however ignorant or illiterate, could be at a loss 
 for them, and when that was intended, it would be expressed in some 
 form or other. Whilst, therefore, we are unable in cases of inconsistent 
 devises, to fix with certainty the meaning of the testator, it may be 
 affirmed with great confidence, that he did not intend that the devisees 
 should take equally. 
 
 This view tends very strongly to the conclusion, that both ought to be 
 rejected, on account of their repugnancy ; and yet it is certain that the 
 testator intended to dispose of the thing devised, and here the rule of 
 Lord Coke is most opportunely introduced. Not that it furnishes a 
 certain guide to the intention of the testator ; but valuable, on account 
 of its simplicity and the facility of its application ; and it certainly loses 
 nothing of its force and authority, by Lord Hardwicke's dissent to the 
 reasoning of the modern cases opposed to it, in Ulrich v. Litchfield, 2 
 Atk. 374. 
 
 There is another consideration which very strongly inclines my judg- 
 ment in favor of this rule. It has been, as *before remarked, r^ogn 
 fixed in my mind, by very early impressions. I believe, too, that ^ 
 it has been the current opinion of the profession, and I think that is the 
 understanding of the community. One case of the sort has occurred 
 within ray own observation, which was precisely like this, (inconsistent 
 bequests of a negro) and was adjusted by this rule ; and it is not impro- 
 bable that many others have occurred, and have not been brought into 
 litigation on account of the supposed propriety of the rule. 
 
 It is therefore ordered and decreed, that the decree of the Circuit 
 Court be reversed, and that the complainant's bill be dismissed, with 
 costs. 
 
 O'Neall and Harper, Js., concurred.
 
 252 SOUTH CAROLINA EQUITY REPORTS. [*369 
 
 Dawkins and Littlejohn vs. Daniel Smith. 
 
 Judgments bind lands throughout the State when abstracts of them have been 
 forwarded to the Clerk in Charleston. And where judgment was obtained in one 
 District, and land lying iu another was afterwards sold by the defendant: — Held, 
 that it will be presumed that an abstract was forwarded to Charleston, and that 
 the land was bound by the judgment. [*369] 
 
 York, June, 1833. This was a petition praying that a judgment the 
 plaintiffs had obtained at Union Court House, might be satisfied out of 
 the proceeds of the sale of a tract of land sold by the Ordinary of York 
 District, to make partition among certain distributees, of whom the 
 defendant was one. 
 
 The defendant in his answer stated that he had sold his interest in the 
 land to Aaron Wilkins, for a valuable consideration ; and Wilkins who 
 was permitted to come in, in his answer alleged the same fact, and that 
 he had no notice of the judgment. The sale to Wilkins, however, was 
 subsequent to the judgment. Chancellor Johnston dismissed the petition, 
 and the plaintiff appealed. 
 
 DaiL'kins, for the appellant. 
 
 Rogers, contra. 
 
 Johnson, J. The ground on which the complainant's petition was 
 ^qwrj-| dismissed, is not distinctly stated in the order of the *Circuit 
 -• Court, but it is understood to have been founded on the circum- 
 stance that Wilkins was a purchaser from Smith without notice of the 
 prior incumbrance of the complainant's judgment. The case of^Yood- 
 ward V. Hill, 3 M'Cord, 241, decides that the judgments of the Circuit 
 Court bind lands throughout the State, when abstracts of them have 
 been forwarded to the Clerk of the Court for Charleston District, to be 
 recorded conformably to the Act of 1789; and in the absence of any 
 proof on the subject, it will be presumed that the officers charged with 
 that duty have discharged it. It is then the case of a judgment having 
 a binding elfect on lands of which every one is bound to take notice. 
 The object of recording them in Charleston, was to have some common 
 place to which all might resort for information; and if with these means 
 Wilkins neglected to inform himself, it is his own folly and he must take 
 the consequences. 
 
 It is therefore ordered and adjudged, that the order of the Circuit 
 Court dismissing the plaintiff's petition be reversed, and that the case be 
 remanded to the Circuit Court for trial on the merits, conformably to the 
 principles herein laid down. 
 
 O'Neall, J., concurred.
 
 '370] COLUMBIA, DECEMBER, 1833. 258 
 
 James Robertson, and others, vs. Edward Collier and Wife, and 
 
 others. 
 
 Principles applicable to a bequest for life of chattels consumable, or wearing out, 
 in the use. [*373] 
 
 Where an estate, consisting of a plantation and slaves, stock, farming utensils &c , 
 are devised to one for life (or widowhood) the perishable articles cannot be 
 considered as belonging absolutely to the tenant for life. — The tenant for life will 
 be considered as a trustee for the remainder-man, and must preserve the estate, 
 with all its appurtenances, in the same situation in which it was received. [*374] 
 
 Bill for account and partition, heard before Chancellor De Saussure, 
 at Abbeville, June, 1833. 
 
 George Robertson, deceased, by his last will and testament, executed 
 in 1817, devised and bequeathed to his wife, viz.: "I also give her, 
 during her widowhood, the whole of the interest and profit arising from 
 my estate real and personal, except so much thereof as may be necessary 
 for *the education and maintenance of my children, hereinafter r^oh-i 
 mentioned. But in case of her marrying again, in place of the ^ 
 before-mentioned use and disposal of the whole of the interest and profit 
 arising from my estate, I give her one-third part of the whole of my 
 estate, real and personal, to be hers and to be at her disposal forever ;" 
 and the residue he directed to be divided between his children, after 
 applying so much as might be necessary for their education and main- 
 tenance until the period fixed for distribution. By another clause he 
 declared, that "should my hereinafter-named executrix and executor, 
 think it necessary, or for the advantage of the estate, to sell or dispose 
 of all or any part of my estate, real and personal, I do hereby authorize 
 them to do so, the money arising from such a sale, to be laid out in such 
 bank stock as they may think most advisable ; the interest arising there- 
 from to be applied as before directed ;" and appointed his wife executrix, 
 and John M'Calla, executor. 
 
 At first M'Calla alone qualified. He sold all the property except the 
 plantation and the negroes, and other personalty on it; and having paid 
 the debts, vested the balance of the sales in bank stock. After the tes- 
 tator's death, the widow continued to reside with the family on the plan- 
 tation, having the possession and use of the negroes and other property 
 during her widowhood, and supporting and educating the children. The 
 executor had made an inventory and appraisement of this property, and 
 on delivering it to the widow, had taken her receipt, by which she 
 acknowledged the property was to be accounted for, as the will directed. 
 Of the property thus held by her, there was personalty appraised at 
 $4,318 28, which consisted of perishable articles, such as were consumable 
 in the use, and such as could not be expected to outlast an ordinary life- 
 time. In 1821, the widow intermarried with the defendant, Ed. Collier, 
 and consequently her right to the enjoyment of the whole estate for life 
 ceased, and she became entitled to one-third thereof absolutely, according 
 to the provisions of the will. Shortly afterwards she qualified as 
 executrix.
 
 254 SOUTH CAROLINA EQUITY REPORTS. [*372 
 
 j^„^g-l *The case came before the Court, on exceptions to tbe Com- 
 -• missioner's Report. Several questions were made, but the prin- 
 cipal and only one which it is thought necessary to notice was, as to the 
 liability of Collier and wife, for the property received by her, which was 
 perishable in its nature, and consumable in the use. The Commissioner, 
 in his report, did not charge them with this property ; and the plaintiffs 
 excepted thereto, "Because the Commissioner has not charged Ed. 
 Collier and wife with the property received by her, which was consuma- 
 ble in the use, and that which was perishable in its nature, amounting in 
 the aggregate, to $1,318 28, a part of which having been consumed in 
 the ordinary course of husbandry, and the residue having perished or 
 been worn out by Mrs. Collier and her husband; whereas, by the will, 
 " the interest or profit," only of said property is given to Mrs. Collier, 
 during her widowhood, and one-third thereof absolutely, on her mar- 
 riage. " 
 
 The Chancellor sustained the exception, and the defendant appealed, 
 on the ground : 
 
 That the devise to the widow during her widowhood, is coupled with 
 a trust to maintain and educate the children, is, both in its terms and 
 substance, a devise as well to the children as to their mother, and by the 
 whole context it is apparent, that the use intended was a use of the 
 property in ^■«?'^/ and not in value; and therefore the defendants were 
 not bound to account for any but what remained of it at the termination 
 of the particular estate. 
 
 Boivie, for the defendant, cited Howe v. Earl of Dartmouth, 7 Yes. 
 131. He argued that it was a question of intention, whether the testator 
 intended his widow to enjoy his property in kind or in value. That 
 having left it to her discretion, whether it should be sold and what part, 
 shows his intention that she should, if she chose, enjoy it as such property 
 is usually enjoyed. And being charged with the maintenance of the 
 children, the testator must have known, and intended that it should be 
 ^otTO-i enjoyed in kind; and *that only such part as remained, on the 
 -^ death or marriage of the widow, and in the condition it then was, 
 should be given over in remainder. 
 
 Pope, contra, contended, on the authority of Devlin v. Patterson, that 
 the tenant for life is accountable for the value of perishable property. 
 The intention here is manifest, for the testator gives only "the interest 
 and profit" of the property in express terms, which is opposed to the 
 idea of its destruction. The very direction to sell, shows a different 
 intention ; for, would the testator have directed a sale of property which 
 he intended should be consumed in the use, or worn out by enjoyment ? 
 The executors ought to have sold this property, and this would have 
 ousted this absolute right now claimed, and not having done so, if the 
 estate should suffer in consequence, Mrs. Collier, as executrix, would be 
 liable for a breach of trust. The testator gives his widow one-third of 
 his estate, if the construction contended for should prevail, she will have 
 received about one-half. 
 
 Harper, J. The whole estate was devised to Mrs. Robertson during 
 widowhood, subject to a charge for the maintenance and education of her
 
 *373] COLUMBIA, DECEMBER, 1833. 255 
 
 children. The annexing of this charge can make no difference in other 
 respects as to her duties and liabilities as tenant for life. The case of 
 Devlin v. Patterson, (a) decided by this Court and referred to by the 
 Chancellor, was chiefly relied on as settling the principles which are to 
 be applied in the case before us. The general conclusions in that case 
 are, that if chattels, strictly consumable in the use, such as corn, wine, 
 &c., be given speciJicoJly to one for life with remainder over, the 
 remainder is void, as being inconsistent with the only nse which the 
 tenant could make of them. If there be a similar bequest of articles 
 wearing out in the use, such as farming utensils, &c., the remainder-man 
 must take them, or such of them as remain, in the condition they are in 
 at the termination of the life estate, deteriorated l>y the use of the tenant 
 for life. But if such chattels be given by a residuary bequest, compre- 
 hending various articles, they are to be sold and the money vested ; the 
 tenant for life to receive the interest, and after his death, the remainder- 
 man* to have the principal. The consequence is, that the tenant r^o^A 
 for life accounts to the remainder-man for all articles of the L 
 description mentioned, at the value which they have at the commence- 
 ment of the estate for life. 
 
 In the case before us, the devise was not strictly of a residue but of an 
 estate, There was no bequest of corn, ploughs, carts, horses or mules, 
 but of an estate comprehending all these particulars, as well as lands and 
 slaves ; and it seems to me to come within the reason of the rule which 
 has been applied to the bequest of a residue. In this case, however, the 
 legatee was not bound, nor could she have been compelled, to sell the 
 estate and vest the proceeds. From the power given to the executrix 
 and executor to sell any part or all of the estate as they may think neces- 
 sary or advisable, is plainly implied, that if they think proper they may 
 retain and use it in kind, without sale, and hence it is inferred, that if 
 they think proper to retain it, they are to account for perishable articles 
 as if these had been specifically bequeathed. The inference does not 
 seem to be legitimate. The option given by the testator was for the 
 benefit of his estate ; and it would seem unreasonable that by adopting 
 one course the devisee should have an unlimited power of disposition 
 over a large portion of the estate — to consume or wear out — while by 
 the other, she would be compelled to account for every article as she 
 received it. 
 
 An extract from the opinion of Judge Nott, in the case of Devlin v. 
 Patterson, will, I think, put the matter upon its true footing. " Tliere 
 is another view of the subject which deserves consideration, and which is 
 somewhat peculiar to the situation of this country Lands are sometimes 
 given to one for life, together with the slaves, stock of horses, cattle plan- 
 tation tools and provisions, with a limitation over. In such case, the 
 perishable articles cannot be considered as belonging absolutely to the 
 tenant for life : neither can they be sold ; because they are necessary for 
 the preservation of the estate. The tenant for life must therefore be 
 considered as a trustee for the remainder-man, and must preserve tne 
 estate, with all its appurtenances, in the same situation in which he 
 
 (a) Columbia, 1829— not reported- opinion lost or mislaid.— R.
 
 256 SOUTH CAROLINA EQUITY REPORTS. [*374 
 
 received. He may therefore be required to give an inventory of 
 _p.-, *the property, or security for its preservation according to cir- 
 -J cumstances. The tenant for life will be entitled to the increase 
 of the stock and the rents and profits of the land ; but he must keep up 
 the stock of cattle, horses, provisions and instruments of husbandry, in 
 the condition in which he received them. For although some of the 
 articles may be consumable in the use and others are wearing out by the 
 attrition of time, yet when taken altogether, being reproductive, the estate 
 must be made to keep up its own repairs." These views are so full and 
 explicit, that little need be added to them. The principle is the same, 
 though extended in its application, by which a tenant for life in England is 
 forbidden to waste the estate, and is required to make ordinary repairs, or 
 any other tenant is required to treat the estate in a husband-like manner, 
 or the legatee for life of a flock or herd while he takes the increase, is 
 required to keep up the original stock. The tenant for life is entitled to 
 the use of the estate; but it is such use as a prudent proprietor would 
 make of his estate. The profit of an estate is the nett income after 
 defraying all necessary expenses ; and to renew a plough that is worn 
 out, or replace a horse or mule that dies, comes under the head of neces- 
 sary expenses. Thus the relative rights of the tenant for life and remain- 
 der-man, will be the same, whether the estate be sold and the proceeds 
 vested or retained in kind. If, at the termination of the life estate, all 
 the articles of the sort mentioned are not in as good condition as when 
 he received it, the tenant must make good the deficiency. 
 The decree of the Chancellor is therefore affirmed. 
 
 Johnson and O'Neall, Js., concurred. 
 
 ^o^n-i *JoHN RiDDLEHOovER, and others, v. John M Kinard, Admin- 
 ^ J istrator of John P. Kinard and J. T. Sligh, Administrator of 
 Catharine Kinard, and others. 
 
 Where one being sole legatee under a will administered with the will annexed, took 
 possession of the property and held it for upwards of twenty years and the will 
 was then declared void and the probate revoked: — Held, that this possession 
 conferred title as against all persons who were not under legal disabilities, and 
 that after such a lapse of time the Court will presume whatever is necessary to 
 give efScacy to the possession. [*378] 
 
 The legatee having married, her huand obtained possession of the property: — Held, 
 that the marital rights attached as against those who were not under disabilities. 
 [*382] 
 
 Uriah Wicker being possessed of considerable real and personal estate, 
 died in 1808, without issue, leaving a widow, Catharine, and brothers and 
 sisters, and their descendants, all of whom, except the children of a 
 deceased brother (John) were of age. An instrument purporting to be 
 a will, and alleged to have been duly executed, bequeathing his entire 
 personal estate to his widow, Catharine Wicker, was proved in common 
 form, and letters of administration with the will annexed, granted to her.
 
 [*3n 
 
 *376] COLUMBIA, DECEMBER, 1833. 257 
 
 She took possession of the whole estate, made an appraisement, and sold 
 off a portion of the personalty, but made no returns to the Ordinary, and 
 continued in the possession and enjoyment of the balance for many years. 
 She afterwards intermarried with John P. Kinard, who thereby became 
 united with her in the possession of the estate, and in the administration. 
 Catharine Kinard (Wicker) died in 1826, intestate, and without issue, her 
 husband, John P. Kinard, and mother, Mrs. Sligh, her surviving. After 
 her death, her husband, John P. Kinard, continued in the possession of 
 the estate, as theretofore, and received the renis and profits, till his death, 
 in 1828. He died intestate, without issue, leaving brothers and sisters ; 
 and his brother, J. M. Kinard, one of the defendants, administered on 
 his estate, possessed himself of the property so held by his intestate, and 
 made sale thereof. In the year 1830, on some discovery of facts, a peti- 
 tion was presented to the Ordinary, requiring proof of the alleged will in 
 solemn form. The Ordinary decreed against the will, and revoked the 
 probate. On appeal to the Court of Common Pleas, his decree was 
 sustained by the verdict of a jury, and finally confirmed by the Court of 
 Appeals, in 1832. After this, the plaintiffs administered on the estate of 
 Uriah Wicker, and are entitled to distributive shares of a moiety thereof. 
 In 1833, John T. Sligh administered on the estate of Catharine Kinard. 
 
 *The original bill was filed in 1829 for partition of the real 
 estate, and after the will had been set aside the plaintiffs filed a 
 supplemental bill. They state that they are unwilling to disturb the 
 purchasers of such of the property as has been sold, but on having the 
 purchase money accounted for, will confirm the sale. That the share of 
 Catharine Kinard in the estate of Uriah Wicker, was not reduced into- 
 possession by her second husband, John P. Kinard, so as to vest in him, 
 especially as the will was set up surreptitiously and fraudulently, whicL 
 was known to him ; but that the said share vested in J. T. Sligh, her 
 administrator, and is distributable. The bill prays for an account and 
 partition. 
 
 The answers set up various grounds of defence, put the principal points- 
 made and insisted on in the argument were : 
 
 1. That the estate of John P. Kinard should not be held liable for a 
 devastavit (if any) committed by the wife dum sola, no recovery being 
 had during coverture. 
 
 2. That^Mrs. Kinard held adversely to the plaintiffs, and lapse of time 
 and the statute of limitations ought to protect the possession of the pro- 
 perty in her and her husband. 
 
 3. That the marital rights of John P. Kinard, atttached on the pro- 
 perty held by him, and consequently his representatives were not liable 
 to account therefor. 
 
 The case came to a hearing before Chancellor De Saussure, at New- 
 berry, July, 1833. The Chancellor decreed against the defendants on 
 the points made, and ordered and decreed the administrator of John P. 
 Kinard to account for the estate which went into the possession of his wife, 
 as administratrix with the will annexed ; and tliat bona fide purchasers 
 of any part of the estate, be quieted in their purchases ; the defendant to 
 account for the proceeds of the sale. 
 
 From this decree the defendant, J. M. Kinard, appealed, on the grounds 
 taken below. 
 
 Vol. I.— 17
 
 258 SOUTH CAROLINA EQUITY REPORTS. [*377 
 
 J. J. CaldiceJl, for the appellant, argued, that as to the account for 
 rents and profits, it can only be claimed from the entry, 7 T. R. 433 ; lb. 
 727 ; 13 East. 474; and it cannot be carried back more than four years 
 before the filing of the bill, 1 Atk. 524 ; 2 M'C. Ch. 317. As regards 
 j^ -, *the lapse of time, he contended, that according to adjudged 
 -J cases, it conferred a perfect title, and the minority of some of 
 the parties could not defeat the legal presumption arising from lapse of 
 time — differing herein from the statute of limitations — and cited and 
 
 relied on Hutchinson v. Noland, 1 Hill, 222 ; Foster v. Brown, ; 
 
 4 Bro. Ch. 256. 
 
 Fair, contra. The Court held the plaintilfs to be in time when they 
 set aside the will, and of course they are entitled to the account. So long 
 as the will stood in force they had no right of action and consequently 
 cannot be barred. Nor was there laches in the plaintiffs — they were kept 
 in ignorance of their rights by the fraudulent conduct of Mrs. W. ; and 
 in equity, all those who received the property with knowledge of the cir- 
 cumstances would be considered trustees. He cited 8 Stark, on Ev. 
 1217-27 ; 2 Eng. Ch. Rep 200. 
 
 Harper, J. I shall first consider the ground of defendant's motion, 
 which respects the lapse of time or the statute of limitations. Defend- 
 ants, or those under whom they claim, had been in possession of the estate, 
 claiming it as their own, for more than twenty years before the filing of 
 the bill. Probate of the will M'as granted in 1808, and the bill filed in 
 1829. And it may be observed that, at the time of filing the bill, com- 
 plainant had no right of action, as the will was then in existence. It was 
 in 1830, that the application was made to revoke the probate. If there 
 had been no will and no administration, and defendants without color of 
 title, had taken possession of the property and kept it for so long a time, 
 I suppose their title would be good, under the decisions in Reed v. Price, 
 State Rep. 1, and Hutchinson v. Noland, 1 Hill, 222. Administration 
 would have been presumed and that defendants had acquired a title from 
 the administrator. The lapse of twenty years is sufficient to raise the 
 presumption of a grant from the State, of the satisfaction of a bond, 
 mortgage or judgment, of the grant of a franchise or the payment of a 
 legacy, or almost anything else that is necessary to quiet the title of pro- 
 perty. After twenty years a bill of review will not lie. This is the 
 -j,quq-| general equitable bar. *It may be true, in general, as stated in 
 -' the case between the same parties brought up on appeal from the 
 ordinary, that when the goods of an intestate are converted, the cause of 
 action arises from the time of granting administration, and from that time 
 the statute will begin to run. But the cases to which I have referred 
 show, that there is a distinction wlien we come to consider the presump- 
 tion arising from lapse of time. If defendants would have been protected 
 if there had been no administration or probate, what makes the case 
 worse for them under present circumstances ? Is it that instead of being 
 trespassers committing a known wrong, they took possession under an 
 apparently good title, for aught that appears, bona fide, believing the 
 property to be their own ? Their possession was still adverse ; they 
 claimed for themselves ; this was known to all the world, and must be
 
 *379] COLUMBIA, DECEMBER, 1833. 259 
 
 presumed to have been known to the complainants. It is rcjilied tliat 
 complainants (I speak of those who were of full age at the time of probate 
 prranted) were under a disability ; they could not sue while the will was 
 in existence ; they were misled by the granting of the probate, and igno- 
 rant of their rights; in the language of the Chancellor, "they wanted 
 light and liberty." It is also said that they took possession in the 
 character of trustees and it does not appear when that possession termi- 
 nated, and that you cannot make the usual presumptions. You cannot 
 presume an administration, for probate is shown and the will under which 
 they claimed. Nor can you presume a valid will giving the pro]ierty to 
 them, for the recent decision of the Ordinary affirmed by the Court, shows 
 that there was no will. 
 
 It is true that the complainants could not have sued while the will was 
 in existence; nor in the cases of Reid and Price and Hutcliinson and 
 Noland, could there have been a suit till administration granted. By whose 
 laches was the will permitted to continue in existence so long. According 
 to our decision in the case of the will, the parties who were of full age at 
 the time of the probate, had no right to contest the will after a lapse of 
 four years ; shall they be permitted to contest rights claimed under the 
 will after a lapse of twenty ? As observed by the Chancellor, the com- 
 plainants, or those *whom they represent, certainly knew that they r;i:ooA 
 were the next of kin to Uriah Wicker, and in default of a will ^ 
 entitled to his estate. They must be yjresumed to have known of the will, 
 of which they were so much interested to be informed. The Ordinary's 
 office was open to them and they might have known how the will was 
 proved, and most probably did know. They might then have obtained 
 legal advice upon the sufliciency of proof, and cited the administratrix to 
 prove the will in solemn form. Under what disability did they labor 
 then, which was removed when the application was made to the Ordinary, 
 in 1830? In the case of Nicks v. Martindale, State Rep. 135, it was 
 held that the statute of limitations, which had begun to run against an 
 intestate, was not after his death suspended until administration granted, 
 on the ground that it was the fault of those interested in the estate not to 
 have taken out administration sooner. Was it not the fault of the com- 
 plainants not to have sooner contested the will ? If twenty years was 
 not sufficient to mature defendant's title what time would have sufficed ? 
 thirty ? fifty ? a century ? Rights consecrated by time must not be held 
 by so impalpable a tenure. 
 
 Then as to taking possession in a fiduciary character. By adminis- 
 tering cum tedamenio anvexo, Catharine Wicker took possession as 
 trustee for herself, and this was as adverse to all the rest of the world as 
 if the executors appointed by the will had qualified and delivered the 
 estate to her as legatee. It was immaterial whether she held as adminis- 
 tratrix or legatee. It is said, we cannot presume either a general 
 administration or a valid will. It is hardly necessary to say that legal 
 presumptions are not founded on actual belief As observed by Lord 
 Erskine in Hillary r. Waller, 12 Yes. 267, "mankind, from the infirmity 
 and necessity of their situation, must, for the preservation of their property 
 and rights have recourse to some general principle to take the i)lace of indi- 
 vidual and specific belief." In the Mayor of Hull v. Horner, Cowp. 162, 
 the grant of certain duties to the corporation of Kingston upon Hull was
 
 260 SOUTH CAROLINA EQUITY REPORTS. [*380 
 
 presuraed from long usage, though their charter was produced which con- 
 tained no such grant. So in the case of Bedle v. Beard there quoted, 12 
 Co. 5, the grant of an advowson appendant to a manor was presumed 
 *Qsil *fi"0'^ possession, though the grant of the manor was produced 
 -I whicli did not include the avowdson. Presumptions must be 
 sometimes made against the well-known truth of the fact. If twenty years 
 have elapsed without the payment of interest or any acknowledgment of 
 a bond, we must presume it paid, notwithstanding the fullest conviction 
 that it never has been paid. In Hutchinson v. Noland, it was proved 
 by the Ordinary that no administration had ever been taken out till granted 
 to the plaintiff. As said in that case, we will presume whatever is neces- 
 sary to give efficacy to long possession. If it were necessary to make 
 any specific presumption in this case, I would presume that the parties 
 who were of full age at the time of the probate, released to Catharine 
 Wicker their interest in the estate, or their right to contest the will. The 
 probate cannot be regarded as revoked at their suit, but at the suit of 
 those who were under disability. 
 
 It is stated in the bill, and admitted by the answer, that all the 
 brothers and sisters of Uriah Wicker (who were his next of kin) were 
 living and of full age at the time of his death. It appears from the testi- 
 mony, however, and seemed to be conceded at the hearing, that one 
 brother (John) was then dead, having left infant children. Those who 
 represent the other brothers and sisters are barred by the lapse of time ; 
 and as to them, the bill must be dismissed with costs. The children of 
 John Wicker who came of age within four years next before the filing of 
 the bill, are, I think, entitled to an account. But on the authority of 
 Eowland v. Best, 2 M'C Ch. Rep. 311, I think it must be without 
 interest until the bill filed. It is not stated in that case, that the parties 
 entitled to the estate were infants. The infancy of some of the parties 
 in this case saves their right to an account ; but the claim to interest is 
 within the discretion of the Court, according to the equity of circum- 
 stances. The defendants, or those under whom they claim, believed 
 themselves the owners of the property, and had good reason so to believe. 
 In this confidence they expended the income, and it would be hard, 
 approaching to the effect of fraud, to call upon them to account for what 
 5^009-1 they have thus expended. A man is not supposed *to expend the 
 "'-^ capital of his estate, but he may justly be presumed to expend the 
 income. 
 
 Questions are made, whether John B. Kinard is liable for the devastavit, 
 us it is called, of his wife, and whether his marital rights attached on the 
 property in his possession. Catharine Wicker sold the whole estate, and 
 John Kinard very soon after married her. In point of fact there is little 
 doubt that the whole of the proceeds went into his possession. fa 
 respect to the assets thus received, he became liable as administrator, in 
 right of his wife, to any one who had a claim on the estate of Uriah 
 Wicker. There is no question of devastavit; but I think the marital 
 rights must be held to have attached as against all the world, but the 
 parties (children of John Wicker) who are entitled to relief under this 
 decree. Suppose the will to have been a valid one, would there have 
 been any question as to the attaching of the marital rights ? An executor 
 who is also legatee, may, by the slightest act, signify his intention to take
 
 *382] COLUMBIA, DECEMBER, 1833. 261 
 
 possession in his character of legatee, and terminate his possession as 
 executor. If the will had been valid, and Kinard and wife entitled, 
 under it, to the whole estate, could any thing be more extravagant than 
 to suppose, that during the twenty years that he possessed the estate and 
 dealt with it as his own, he continued to hold possession in his character 
 as trustee. But as to all the rest of the world, except the parties before 
 mentioned, the case is the same as if the will had been valid. All others 
 are precluded by length of time from questioning any title that John P. 
 Kinard may choose to set up. They are estopped by their acquiescence. 
 To the children of John Wicker, who are declared to be entitled to relief, 
 the representative of John P. Kinard must account, as for the estate of 
 Uriah Wicker. 
 
 It is ordered and decreed, that the decree of the Chancellor be modified 
 according to the views herein expressed. 
 
 Johnson, J., concurred. 
 
 * Sarah Young vs. James Naylor. [*383 
 
 The defendant Laving married in Maryland, was divorced a mensa et thoro and 
 afterwards (his wife there living) married the plaintiff in this State, and took 
 possession of her property; on a bill filed to compel an account and surrender 
 of the property, the marriage here was declared void, and the defendant ordered 
 to surrender the property, and account for the rents and profits. [*o8o] 
 
 Laurens, June, 1833. This bill was filed for an account and surrender 
 of an estate which came into the defendant's hands by virtue of a mar- 
 riage with the plaintifi', which she alleges was void, in consequence of a 
 pi'evious marriage of the defendant in Maryland to another, who is still 
 living. To this the defendant answered, that previous to his marriage 
 with the plaiutiif, the Legislature of Maryland had passed a statute dis- 
 solving the marriage there, and divorcing him from that wife. The 
 statute was produced, bearing date 14th February, 1820, (prior to the 
 marriage here) in the following words: "An Act for the benefit of 
 Margaret W. Naylor, of Charles County." "Be it enacted by the Gene- 
 ral Assembly of Maryland, that Margaret W. Naylor, of Charles County, 
 be, and she is hereby divorced from bed and board and mutual cohabita- 
 tion of her husband, James Naylor, of George." 
 
 De Saussure, Chancellor. The question for the consideration of the 
 Court is whether the statute of Maryland was a divorce a vi'-nsa ef thoro, 
 or an absolute divorce a vIncuJo matriiuonii? If it was a divorce a vmciilo, 
 then the defendant was entitled to all the rights in his present wife s 
 property, given by our laws to lawful husbands. If it was a divorce a 
 7nema H thoro o\\\^, then James Naylor had no right to contract inarriage 
 with Mrs. Young or any other woman, and he acquired no right over 
 her property by the mere form of an illegal marriage. 
 
 It was argued, that it was not competent for this Court to inter) lose 
 its authority to give relief for three reasons :— 1st. Because it involved 
 the exercise of ecclesiastical jurisdiction, which does not belong to Chan-
 
 262 SOUTH CAROLINA EQUITY REPORTS. [*383 
 
 eery. 2d. That if there be any wrong done to the complainant, she has 
 a remedy at haw. 3d. That it decides on the law of another State. 
 
 As to the first, the Court by its interposition does not undertake to 
 assume ecclesiastical jurisdiction. It does not undertake to pronounce 
 *oQ±i judicially that the parties are lawfully *raarried or divorced ; but 
 -^ it pronounces the etfect of such a state of things. It decides 
 merely incidentally and collaterally, as every Court is often bound to do. 
 In the case of a criminal prosecution against a man, a woman may be 
 called upon as a witness. She might be objected to as being the wife 
 of the prisoner on trial, and incompetent to be a witness. The marriage 
 might be denied. The course of the trial could not be stopped, and the 
 criminal Judge must hear the evidence to ascertain whether she is the 
 wife of the prisoner, and decide on it too — else he could not decide on 
 her competency or incompetency. And the same difficulty would occur 
 in all Courts of justice, if they could not decide on questions not origi- 
 nally within their jurisdiction. 
 
 On the second ground, that the complainant has a remedy at law, this 
 does not appear to me to prevent the complainant asking relief of this 
 Court, even if the fact were as alleged. One of the common grounds 
 of jurisdiction in this Court, is to prevent multiplicity of suits. Now, in 
 the case before us, the husband might disperse the property into various 
 hands. There are lands, slaves and other property in question. A 
 multitude of suits would be necessary to secure and protect the complain- 
 ant's rights. It appears to me that she comes here properly for relief. 
 
 The third ground of objection is, that this Court cannot decide on the 
 construction and effect of the statute of Maryland, divorcing James 
 Naylor from his wife. This objection is founded in error. It is the 
 practice of all Courts of Justice, in all countries, to decide questions in 
 cases brought before them, arising under the laws of other countries. — 
 The enquiry is made, what is the law of that country in which the con- 
 tract was made or was to be executed and when that is once ascertained, 
 the Court gives it application to the case under consideration. Thus 
 the English Courts have decided in the famous case called the Dalrymple 
 case, what constituted a marriage in Scotland. In that case, which has 
 been followed by others. Sir Wm. Scott decided that the facts proved, 
 constituted a lawful marriage, (against the opinion of some of the most 
 ;^ooc-| learned of the ^Scottish bar) and consequently a second marriage 
 -' contracted in England by one of the parties was null and void. 
 This decision, which has never been questioned, is direct as to the right 
 of this Court to exercise jurisdiction, and to decide on the question of the 
 divorce under the Maryland statute. 
 
 We come then to the consideration of the question, what was the 
 intention and effect of the statute of Maryland. — Was it meant to be a 
 divorce a mensa etthoro, or a vinculo matrimonii ? 
 
 The statute bears date on the 14th February, 1820, and is entitled 
 " An Act for the benefit of Margaret W. Naylor, of Charles County," 
 and is in these words — "Be it enacted by the General Assembly of 
 Maryland, that Margaret W. Naylor of Charles County, be, and she is 
 hereby divorced from bed and board, and mutual cohabitation with her 
 husband, James Naylor of Georgia." Now this statute does not divorce 
 a vinculo matrimonii. — It is from bed and board, which is a mensa et
 
 *385] COLUMBIA, DECEMBER, 1833. 2u3 
 
 thoro — which, it is well niiderstood, does not amount to such an alisulute 
 divorce, as entitles the parties to marry third persons. The addition uf 
 the words " from mutual cohabitation," does not enlarge the nature of 
 the divorce. It is a mere repetition of the idea of separation from bed 
 and board, which of itself would have amounted to a cessation of mutual 
 cohabitation. 
 
 A volume of the statutes of Maryland was placed in my hands, in 
 which I have examined various Acts from 1820 to 1832, divorcing sundry 
 person therein named. By a careful reference to these acts, it ai)pears 
 that wherever the divorce from bed and board and mutual cohabitation 
 is enacted, it does not appear to be considered an absolute and final 
 divorce from the binding efficacy of the original marriage contract. 
 
 Wherever additional provisions were considered necessary to prevent 
 the control of the acts of the husband, or for other purposes, they are 
 expressly inserted in the statute. In a few cases where there are divorces 
 from bed and board and mutual cohabitation, a special proviso is made 
 that these should not amount to a power to the parties *to con- r^^oog 
 tract marriage again, lest those privileges should be construed '- 
 into an absolute divorce. And in cases where the statute means to 
 divorce the parties absolutely, it enacts the marriages to be null and void, 
 and the parties are declared to be divorced a vinculo matrimonii. 
 
 It appears to me then to be quite clear, that the act of divorce between 
 James Naylor and Margaret W. Naylor, was not intended by the law- 
 giver to amount to a divorce a vinculo matrimonii ; but was simply, as 
 it expresses itself to be a divorce from bed and board and from mutual 
 cohabitation. Now this does not authorize either of the parties to con- 
 tract another marriage. — Consequently the marriage contracted by James 
 Naylor with Sarah Young, was null and void, and he acquired no marital 
 rights by virtue thereof. 
 
 It is therefore ordered and decreed, that James Naylor shall not 
 exercise any control over the property of the said Sarah Young ; but shall 
 forthwith deliver up the whole thereof to her, subject to her own acts. 
 And the said property is hereby declared and decreed to be free from the 
 demands, suits, judgments and executions of the creditors of the said 
 James Naylor, or of any other person or persons, other than the said 
 Sarah Young. 
 
 It is further ordered and decreed, that it be referred to the ^Com- 
 missioner to examine and report, what were the debts of Sarah Young, 
 before the alleged marriage with James Naylor — also what were the 
 debts justly and properly chargeable to her after said marriage ceremony. 
 — And that in making up said account, the Commissioner do allow to 
 James Naylor, all just and equitable demands against the said estate for 
 proper improvements or reasonable expenditures. 
 
 From this decree the defendant appealed, on the grounds taken below. 
 
 Williams and Irhy, for the appellant. 
 Young, contra. 
 
 ^Per Curiam, We concur with the Chancellor in his views r*3gY 
 of the questions on which the defendant has appealed ; his motion 
 is therefore dismissed.
 
 264 SOUTH CAROLINA EQUITY REPORTS. [*387 
 
 Titus G. Farr, and others, v. Wm. B Farr, Executor. 
 
 This Court views contracts between trustees and their cestui que trusts in relation to 
 
 the trust property with great suspicion. [*:^90] 
 A party coming into Equity for relief against a fraudulent deed, must come within 
 
 four years after the fraud was discovered («) [*391] 
 And the same lapse of time (four years) will bar relief against fraud in a deed for 
 
 land, as well as for personalty. [*;59:2] 
 
 Heard before Chancellor Johnston, at Union, June, 1833, The bill 
 states that Col. Wm. Farr, late of Union District, deceased, by his last 
 will and testament executed in 1794, charged his estate with the support 
 of his wife during her life or widowhood, and also with the maintenance 
 and education of his children, and after the death or marriage of his wife, 
 he directed his real and personal estate to be divided amongst liis 
 children, and appointed his son, the defendant Wm. B. Farr, and others, 
 his executors. The defendant qualified, became principal acting execu- 
 tor, took possession of the estate and made some sales thereof, and 
 worked the plantation and slaves for many years, taking the entire 
 control and management of the estate, and acting as the guardian of his 
 brothers, the plaintiff Titus Gr. Farr, and James Farr, who were then 
 minors and lived with him. That during this time the defendant 
 frequently represented the estate as insolvent, and that the property in 
 his possession was his own ; which representations are alleged to be 
 false, and made to deceive and defraud the parties interested. That the 
 devisees being indigent and necessitous and desirous of enjoying their 
 share of the estate, in order to effect this, on the coming of age of the 
 youngest child, procured the consent of their mother to release her 
 interest, for an adequate provision in her behalf for life ; and proposed 
 that partition should then be made according to the will. That the 
 defendant objected and positively refused to enter into any arrangement, 
 unless they would allow him a certain quantity of land, and certain 
 *"R81 iisgroes, horses *and stock, amounting in value to about $30,000 
 -I beyond the share he was entitled to under the will, to remunerate 
 him, as he said, for his trouble and expense in managing the estate, 
 raising and educating the children, and for advances made for the benefit 
 of the estate. That having confidence in his representations and wishing 
 to avoid any litigation, the other devisees consented, and accordingly a 
 deed of partition and settlement was executed on 14th March, 1819, 
 which allowed to the defendant the land and negroes and stock as agreed 
 on, and to the other devisees their shares, which afterwards went into 
 their possession and have been held by them ever since. This deed the 
 bill charges to have been obtained by fraud, and prays that it may be 
 set aside and the defendant held to account. It also alleges that the 
 plaintiff, Titus Gr. Farr, was kept in ignorance of the true situation of 
 the estate and of his rights therein, and that the deed was not valid, until 
 within four years before the filing of this bill. James Farr died on 22d 
 May, 1823, leaving children who are plaintiffs in this bill, and most of 
 
 (a) See Eigleberger v. Kibler, ante, 121; Prescott v. Hubbell, ante, 210; Riddle- 
 hoover V. Kiuard, ante, 37G. K.
 
 *388] COLUMBIA, DECEMBER, 1833. 265 
 
 them still under the age of twenty-one; and Titus G. Fan- lias adminis- 
 tered on his estate. The bill was filed in 183 — , after the period f)f the 
 statute of limitations had run out from 1819. 
 
 The defendant in his answer avers, that the parties were fully con- 
 versant of their rights, and voluntarily executed the deed of l8lil as a 
 final settlement and partition of the estate ; and that under the ciroiim- 
 stances it was just and equitable — the property retained by himself being 
 no more than he was justly entitled to ; and he set up this deed in bar to 
 an account, and pleaded the statute of limitations. 
 
 The Chancellor dismissed the bill and the plaintiffs appealed on the 
 following grounds : 
 
 1. That the Court should have declared the deed of partition and 
 settlement fraudulent and void, under the circumstances attending its 
 execution. 
 
 »2, That lapse of time or the statute of limitations should not bar the 
 relief sought, inasmuch as the plaintiffs were ignorant of their rights and 
 of the defendant's fraud, until within four years before the bill was filed. 
 
 3. That the minority of the heirs of James Farr who are *par- r^ooQ 
 ties to the bill as plaintiffs will prevent the bar of the statute of L 
 limitations or lapse of time, as to the rights of the other plaintiffs in the 
 real estate — or at all events, will save their own rights 
 
 « 
 
 Herndon, for the appellants, argued that the deed of partition and 
 settlement should be declared void and set aside, on the grounds, that 
 the defendant had kept the parties in ignorance of the true situation of 
 the estate — had availed himself of their necessities and exacted from them 
 one half of the corpus of the estate besides the profits, for doing that 
 which he was bound to do. That by his false representations, that he 
 was the rightful owner of the property in his possession, and that the 
 estate was insolvent, they were induced to avoid litigation, to consent to 
 his terms — that this might be regarded as a purchase from expectant 
 heirs, which was always regarded with jealously and set aside especially 
 when, as in this case, there was gross inadequacy of price. And that a 
 deed thus obtained should be set aside, as well on the grounds of public 
 policy as for the fraudulent and unconscientious means employed to obtain 
 it. Butler v. Haskell, 4 Eq. Rep. 687 ; 1 Maddock, 96 ; 1 M'C. 383 ; 
 
 1 Mad. 112 ; 2 Yes. Sen. 547 ; 9 Ves. 292. As to the statute of 
 
 limitations or lapse of time, he insisted that time could only be a bar from 
 a discovery of the fraud, and a knowledge by the plaintiffs of their rights. 
 That where the ground of relief is, that the party seeking it was ignorant 
 of his rights, all that is required, is for him to charge the fact, and the 
 defendant must show that he was not. James Farr's heirs-at-law being 
 infants, will save the rights of all the plaintiffs, Lahiffe v. Smart, 1 Bailey, 
 102. By analogy to the statute of limitations, if time is to be a bar in 
 this case, five years will be the time to run, in order to bar the i)laintiirs 
 right to the real estate ; that being the period of the statute at that time ; 
 James Farr died before five years had elapsed from 1819, — and the 
 minority of his children, if it will not save the rights of the other i)lain- 
 tiffs, will at least protect their own. Starke v. Starke, Law Journal. 
 
 Thomson, contra, contended that the deed of 1819 was executed by
 
 266 SOUTH CAROLINA EQUITY REPORTS. [*389 
 
 *^qm ^^^ ^^® parties under a perfect knowledge of *their rights. The 
 -I was no evidence that they were ignorant of them, nor any circui 
 
 lere 
 ira- 
 stance to warrant that conclusion. General allegations of fraud will not 
 do ; it must be specially set out, 2 Saund. PI. & Ev. 116, 643 ; Barn. & 
 Ores. 647 ; 1 Chitty, 339 ; and the plaintiffs have failed, either to specify 
 the fraud in the bill, or to sustain it by evidence. As to lapse of time, 
 he contended that four years was sufficient to bar the relief sought, which 
 was not a recovery of the land, but to set aside a deed as fraudulent ; and 
 four years had elapsed in the lifetime of James Farr after the deed had 
 been executed; and he referred to 14 John. 4UT ; 1 Pothier, 36; Newl. 
 452 ; and the Louisiana Code. 
 
 Herndon, in reply, cited Mad. Rep. 133; 1 M'C. Ch. 389; Mad. 
 Ch. 389. 
 
 Harper, J. The point for consideration is the settlement by the deed 
 of the 14th March, 1819. If the application had been made recently 
 after its execution, I should greatly doubt whether that settlement could 
 be allowed to stand. By it, he apparently secures a very considerable 
 advantage. The relative situation of the parties is to be considered. 
 He was the executor in possession of the estate, and had stood in the 
 relation of actual guardian to the parties. They were just then, by the 
 consent of their mother, entitled to claim a distribution of the estate, and 
 naturally anxious to get into possession. The defendant stood in a 
 position of advantage in treating with them. The property allotted to 
 defendant over and above his equal distributive share, is said to be in 
 consideration of his services in saving and preserving the estate. This 
 must be regarded as a gratuity, and such gratuities, under such circum- 
 stances, the Court always looks upon with the greatest suspicion. In 
 such case, as is said in Hylton v. Hylton, 2 Yes. Sen. 547, the party is 
 supposed to say, 'I will not deliver up the estate, unless you grant me 
 this.' Defendant had plausible grounds for involving them in a pro- 
 tracted litigation ; and indeed he himself states in his answer that he 
 would not have consented to what he terms a premature division, unless 
 *391"1 ^^ ^^^ apparently gained some *advantage. It is true that the 
 -■ settlement was proposed to the defendant by the other parties. 
 But then it is to be recollected that he had previously attempted to alarm 
 their fears by telling them that the property was his ; that their father's 
 estate was insolvent, and referring them to the Ordinary's office for proof 
 of that fact. I do not mean that he deceived them. I believe they well 
 knew, or had good reason to believe, that he could not hold the property 
 as his, and that they were entitled to distribution. But they might justly 
 be alarmed at the prospect of being held out of possession for a long 
 time. He operated not upon their ignorance, but upon their will. But 
 it is unnecessary to investigate minutely this part of the cause, as I am 
 satisfied complainants are barred of their claim to relief by the lapse of 
 time, in analogy to the statute of limitations. 
 
 The complainants come to be relieved against a fraud. They come to 
 set aside a deed w4nch is a bar to an account to which they would be 
 otherwise entitled. I am not aware that there is any doubt about the 
 rule that a party coming to be relieved against a fraud, must come within
 
 *391] COLUMBIA, DECEMBER, 1833. 2GT 
 
 four years (in England six years) from the time the fraud is discovered. 
 In Wymondsell v. The East India Company, 3 Pr. Wras. 143, it is ruled, 
 that the bill must allege that the fraud was discovered within six years 
 before exhibiting it. And the fact must correspond with the allegation. 
 " If the fraud was known and discovered six years before exhibiting the 
 bill, this, though a fraud, would be barred by the statute of limitations. 
 The subject is fully considered by Lord Redesdale in Hoveden v. 
 Annesley, 2 Sch. & Lef. 607. The bar of six years is adopted in 
 analogy to the legal bar to an action of account. In the case of Starke 
 V. Starke,. Law Jour. 503, decided by this Court, it was held that while a 
 trust continues, the statute cannot affect it; "but if the trustee does an act 
 which he intends, and which is understood by his cestui que trust, to be 
 a discharge of his trust, then the statute^will from that time commence to 
 run." To the same effect was the case of Moore v. Porcher,((f) decided 
 in Charleston ; with the explanation that if there be fraud in the act by 
 which the trust purports* to be finally executed, the statute will r^jcqqo 
 not begin to run till the fraud is discovered. L 
 
 But what fraud was there in this transaction, which the complainants 
 have discovered since the settlement ? I cannot discover a vestige of 
 any. If there was any fraud, it was not, as I have before said, in im- 
 posing on their ignorance, but in alarming their fears and taking advan-. 
 tage of their situation and natural impatience to have possession of their 
 property. They certainly knew of the purchase by Richard Farr, at the 
 executor's sale, and seemed to be satisfied that the defendant could not 
 claim under that. They knew of what property the estate consisted, and 
 how it had been managed. They knew that the defendant had not kept, 
 or at all events, had not returned any accounts. They knew that if he 
 purchased property with the proceeds of the estate, a trust resulted for 
 those entitled to the estate. They had able legal advice. I cannot lay 
 my finger on the minutest fact w'hich they know now, that they did not 
 know then ; and as said by the defendant's counsel, I am satisfied that 
 they were at least as well informed of their rights then, as they are now. 
 If they were alarmed into offering such terms as the defendant w-as willing 
 to accept, they had four years after being put in possession of part of 
 their property, to institute further proceedings. Having neglected to 
 do so, it is time there should be an end to litigation. 
 
 It was argued that the statute could not apply to the heirs of James 
 Farr, who have been minors, so far as respects the land ; and that their 
 minority will save the rights of the rest. Five years was at that time 
 required to bar the right to land. There is nothing in this. This is not 
 a suit to recover land — though the recovery of land might be an inci- 
 dental consequence of it. It is to be relieved against a fraud. It is to 
 set aside a deed ; which deed, while of force, is a bar to the account 
 which they claim. The defendant does not claim the land under the 
 statute, but under the deed. If the deed were out of the way, the ^de- 
 fendant, I suppose, could not hold the land by the statute. James Farr 
 lived four years after the execution of *the deed. It is that deed r*393 
 which is sought to be relieved against, and from the execution of 
 that, the statute began to run. 
 
 The motion is dismissed and the decree afiirmed. 
 
 Johnson and O'Neall, Js., concurred. 
 (a) Not reported.
 
 268 SOUTH CAROLINA EQUITY REPORTS. [*393 
 
 David Boozer v. Mary E. Wallace, John P. Boozer and Francis 
 
 Boozer. 
 
 An administrator in possession of his intestate's estate died, and tlie funds fell into 
 the hands of his administrator. The widow was then appointed administratrix, 
 de bonis non, and guardian of her children, who were entitled to distributive 
 shares of the estate, and afterwards married the plaintiff, and together with her 
 husband received the estate from the administrator of the first adniinistrator: — 
 Held, that in respect to the fund thus received, the plaintiff was not clothed with 
 a representative character that he received it from the administrator in the 
 character of husband, and consequently that the marital rights attached. [*395] 
 
 Newberry, July, 1833, before Chancellor Johnston. Bill for partition, 
 &c. It had been referred to the commissioner, "to ascertain and report 
 upon the facts alleged in the bill of the plaintiff, particularly as to the 
 matters of account relative to the estates of Howell Wallace, Hugh Wal- 
 lace and William H. Wallace, and what amount thereof the plaintiff 
 reduced into possession during coverture, and what are the respective 
 interests of David Boozer and the defendants, Mary E. Wallace, John P. 
 Boozer and Francis Boozer ;" and he submitted the following report : — 
 
 "Howell Wallace died intestate in 1822, leaving a widow, Elizabeth, 
 and two children, William H. Wallace and Mary E. Wallace his only 
 heirs. Hugh Wallace took out letters of administration on his estate, 
 and also died intestate in 1825. Shortly after the death of Hugh Wal- 
 lace, William H. Wallace also died intestate, leaving his mother, Eliza- 
 beth, and sister, MaryE. Wallace, his only representatives him surviving. 
 After the death of the said Hugh Wallace, the widow of How^ell Wallace 
 took out administration de bonis non on Howell Wallace's estate, and 
 afterwards received of John Jamison, (who is the administrator of Hugh 
 *S94l Wallace, who was the first administrator* of Howell Wallace) a 
 -' part of the funds of the estate of the said Howell Wallace, and in 
 182Y intermarried with the plaintiff, David Boozer, who together with 
 his wife, in some instances, and at other times alone received of the said 
 John Jamison the residue of the funds of the estate of the said Howell 
 Wallace. During the coverture, all of the funds of the estate of Howell 
 Wallace were in the hands of the said David Boozer, as administrator in 
 right of his wife. Mrs. Boozer died in the fall of 1831, — no settlement 
 nor actual partition of the estate of Howell Wallace, in the hands of the 
 plaintiff, having taken place before her death. She was survived by the 
 plaintiff and defendants. It may not be improper to remark, that Mrs. 
 Boozer had also been appointed the guardian of the said William H. 
 Wallace and Mary E. Wallace — that she never received any of the funds 
 of the said William H, Wallace, he having died during the administration 
 of Hugh Wallace on the estate of his father ; but that she, before her 
 intermarriage, and also during the coverture, together with her husband, 
 continued to act as the guardian of Mary E. Wallace, until her death, 
 and the said David continues to act. 
 
 "These are all the facts material to a correct understanding of the 
 case, and on them the following questions arise : 
 
 " 1. Was there such a reduction into possession of the share of Mrs. 
 Boozer in the estate of Howell Wallace by the plaintiff during the cover- 
 ture, as vested the whole of her one-third in him.
 
 r*395 
 
 *394] COLUMBIA, DECEMBER, 1833. 269 
 
 " 2. Was there such reduction into possession of Mrs. Boozer's interest 
 in the share of William H. Wallace of his father's estate, as vested such 
 share in the plaintiff, in exclusion of the defendants. 
 
 " 3. Was there any reduction into possession by the plaiutiiT of the 
 interest of William H. AVallace in the estate of Hugh Wallace. 
 
 " These are questions of great difficulty, and the Commissioner has 
 neither time nor inclination to argue them. On reflection, however, I 
 have arrived at the conclusion that the marital rights of the husband 
 attached on the interest *of his wife in the estate of Howell Wal- 
 lace, and that he is entitled to it in exclusion of the defendants. 
 As to the interest of William H. Wallace, the Commissioner thinks the 
 plaintiff had no right to the possession of the fund, and was therefore 
 holding it for those entitled; and that he is only entitled to such a share 
 of it as he may claim by representation through his wife. The remaining 
 question is on the same footing." The report concludes by stating an 
 account between the parties, according to the principles here laid down. 
 
 The Chancellor confirmed the report, and the defendants appealed on 
 the ground : 
 
 That there had been no partition of the estate of Howell Wallace, and 
 no such reduction into possession by the complainant as that the marital 
 rights would attach thereon, and therefore the Commissioner and Chan- 
 cellor erred in allowing the complainant the whole of his wife's interest 
 in the estate of Howell Wallace. 
 
 Dunlap and Sumvier, for the appellants. 
 J. J. Caldwell, contra. 
 
 Johnson, .J. The choses in action of the wife which are reduced into 
 possession by the husband during the coverture, belong to him. About 
 this there is no dispute; difficulties do, however, sometimes arise as to 
 what does or does not constitute a reduction into possession. Here the 
 husband, the complainant, had during the coverture the actual possession 
 of the fund, and in such cases the question whether it does not vest in him 
 ju7^e mariii, depends on the circumstance whether he received it in his char- 
 acter as husband, or in the representative character as trustee or executor. 
 In the first case it vests in the husband, in the latter case it does not. The 
 cases of Marsh and wife v. Ardis and others, decided at December Term, 
 1831, and Spann v. Jennings, decided at May Term, 1833, are examples 
 falling within the first class of cases. In both, the husband, without 
 administration, possessed himself of personal property which descended to 
 the wife during coverture, and it was held to vest in the husband, because 
 the wife was sole heiress of the estate, which was unincumbered and free 
 from debt. The case of Baker v. Hall, 12 Ves. 497, is *an r^^c^^ 
 example of cases falling within the latter class. There, a trustee •- 
 and executor married one of the residuary legatees named in the will, and 
 distribution of the residuary estate not having been made, it was held that 
 the marital rights did not attach — so where East India stock belonging 
 to the v,-ife had been transferred to the husband and anotlier as trustees, 
 it was held that it survived to the wife. 
 
 The complainant with respect to this fund was not clothed with any 
 representative character. He received it from the administrator in the
 
 270 SOUTH CAROLINA EQUITY REPORTS. [*396 
 
 character of husband. There was nothing else which entitled him to it, 
 and it must be set down to that account. The circumstance that it was 
 comingled with the money due to his wards does not vary the question, 
 that only made him their debtor to that amount. 
 
 The motion to reverse the decree of the Circuit Court is therefore dis- 
 missed, and it is ordered and decreed that the same be and it is hereby 
 affirmed, (a) 
 
 O'Neall, J., concurred. 
 
 ^007-1 *RoBERT S. Burgess and Wm. H. Burgess, a minor, by guar- 
 
 ^397] 
 
 dian, v. William H. Heape. 
 
 Where the wife before marriage was a joint tenant of slaves, which went into the 
 possession of her co-tenant in her lifetime: — Held, that this was such a fiossession 
 by her, as that the marriage rights of her husband would attach. [*404] 
 
 Barnwell, February, 1833. This bill was filed for an account and 
 partition of certain slaves lately recovered by a decree of this Court, by 
 the defendant and his sister, Eliza Burgess, late the wife of one plaintiff 
 and the mother of the other, of which slaves the plaintiffs claim one-half. 
 It appeared, that pending the suit in which the recovery was had, Eliza 
 Heape married Robert S. Burgess ; and after a decree in their favor and 
 during the lifetime of Mrs. Burgess, the defendant took possession of the 
 slaves and removed with them out of the State, and since refuses parti- 
 tion. Being accidentally found in this State, this bill was filed, and a 
 ne exeat issued against him. Mrs. Burgess died leaving the plaintiffs her 
 only representatives. No administration has been taken on her estate. 
 The plaintiff, Robert S. Burgess, in the bill, claims in the first place for 
 himself, the whole of his wife's moiety of the slaves, by virtue of his 
 marital rights, but should the Court adjudge that the same has not vested 
 in him, then he claims an account and partition for himself, and also in 
 behalf of his son as his guardian ad litem, and prays that his (son's) pro- 
 portion may be delivered to him on his giving the necessary security. 
 
 (a) The judgment of the Court in this case, is predicted on the supposition that 
 the whole estate of Howell AVallace had been administered by Hugh Wallace, the 
 first administrator, and went into the hands of Jamison, his administrator — that no 
 part of the estate was actually received by the plaintiff or his wife, in right of their 
 administration; and consequently that all of this estate received by them was in the 
 characters of distributee and guardian.— The report of the Commissioner on this 
 point is rather uncertain, for it states that the widow, before her marriage, received 
 a part of the estate, and after that the plaintiff, "with his wife, in some instances, 
 and in others alone, received of the said John Jamison, the residue;" and that 
 "during the coverture, all the funds of the estate of the said Howell Wallace, were 
 in the hands of the said David Boozer, as adminhtrator in right of his wife." It is 
 presumed, however, that the fact was, as supposed by the Court, or otherwise a 
 different decision must have been made, as regards any part of the estate received 
 by Mrs. Boozer, or her husband in her right as administratrix de bonis non; for on 
 that part, according to the doctrine of Spann r. Stewart, ante, 332, the marital rights 
 would not have attached. R,
 
 *QQT 
 
 \ 
 
 397] COLUMBIA, DECEMBER, 1833. 271 
 
 De Saussure, Chancellor. The complainant and his son, W. II. 
 Burgess, a minor, suing by guardian, are entitled, by virtue of a decree 
 of the Court of Appeals, to one-half of certain slaves which have come, 
 by virtue of that decree, into the possession of the defendant, W. H. 
 lieape. The latter has removed the slaves out of the State, and beyond 
 the jurisdiction of the Court ; and he has also removed himself, and is 
 found accidentally here, and made responsible only by the process of 
 ne exeat. No objection is made to the right of the complainants to the 
 slaves, and an account for the hire and labor of the slaves. But it is 
 objected, that as th-e complainants claim in right of Mrs. Burgess, late 
 the wife of one, and the mother of the other complainant, they are bound 
 to administer on her estate before the Court will *decree in their rMcono 
 favor. The evidence proves that the complainant, the widower of ■- 
 Mrs. Burgess, is so extremely poor that he has not been able to give the 
 security required bylaw, on administering. Should this bill be dismissed, 
 and W. H. Heape be discharged from the ne exeat bond, the complain- 
 ants will be utterly remediless. The rule certainly is, that generally an 
 administration should be taken out. It has, however, been dispensed with 
 in certain extreme cases. There is another ground on which it is more 
 than doubtful whether an administration was necessary in this case. The 
 decree of the Court of Appeals, which establishes the right of Mrs. 
 Burgess and her brother, W. H. Heape, to the negroes in question, was 
 delivered prior to the death of Mrs. Burgess, and the slaves were delivered 
 to W. H. Heape in right of himself and his sister, Mrs. Burgess. He held 
 them for both, and though it is not absolutely certain that this was such 
 a reduction to possession by the husband as to attach the marital rights 
 of Mr, Burgess to them, I am inclined to think, in such a case as this, 
 that as between the husband and W, H. Heape, at least, it may be so 
 considered. If not, I would postpone the decree, to give Burgess a 
 further opportunity to take out administration. 
 
 Under my present impression, it is ordered, that the defendant, to 
 deliver up the slaves, to which the complainants are entitled by said 
 decree, and account for hire and labor before the Commissioner. Costs 
 to be paid out of the estate. 
 
 From this decree the defendant appealed on the following grounds : 
 
 1. Because the decree determines, that the possession of the slaves in 
 litigation by William H. Heape, was such a reduction to possession by 
 Mrs. Burgess, as that the marital rights of Burgess attached on them. 
 
 2. Because the decree determines that the defendant should account, 
 although no administration is taken out on the estate of Mrs. Burgess. 
 
 The plaintiff also appealed and moves to modify the Chancellor's 
 decree, so that the costs maybe paid by the defendant *in punish- r*399 
 ment of his fraud, and to allow the plaintiffs to take their value, •- 
 instead of the slaves themselves. 
 
 R B. Smith, Attorney-General, for the defendant. Burgess married 
 before the decree, he never was a party to the proceeding.s, and the 
 decree does not notice him ; this defendant was then the only person 
 authorized to receive the negroes, for if Burgess had applied for them the 
 Court might have ordered a settlement on his wife. Wm. H. Burgess, 
 the minor, is not properly a party to this bill, for the incidental reference
 
 272 SOUTH CAROLINA EQUITY REPORTS. [*399 
 
 by his father assuming the character of guardian cannot make the son a 
 party, when he admits that he has not given security, and when he claims 
 the whole of the property for himself So that the bill must be regarded 
 as filed by Kobert S. Burgess alone, and if his marital rights have not 
 attached, it must be dismissed. 
 
 If personal property is not reduced into possession by the husband in 
 the life-time of the wife, the marital rights will not attach, 3 Dess. Rep. 
 135-6; lb. 155 ; Sturginer v. Hannah, 2 N. & M'C. 147. The case of 
 the Ordinary v. Geiger, 2 N. & M'C. 151, arose under a deed, which, 
 from its delivery implies a right of immediate possession. As to the 
 ground that here is Si joint tenancy, and that the possession of one tenant 
 is the possession of the other, it may be remarked, that when the defend- 
 ant got possession, if he did not choose to deliver them, the right of his 
 sister was a mere chose in action ; and this is all the right her husband 
 can claim ; he can obtain only one-third of her interest under the Act 
 of '91. 
 
 If, however, the complainant is entitled to the property as between him 
 and the defendant, he may not be entitled to it as against the creditors of 
 Mrs. Burgess ; and for this reason the Courts liave laid it down as an 
 indispensable rule that administration must be taken out, and that "no 
 person, though next of kin, can sue at Law or Equity for the personal 
 jiroperty of an intestate, unless he takes out administration." Farley v. 
 Farlev, 1 M'C. Ch. 514 ; Gregory v. Forrester, lb. 324 ; Bradford v. 
 Fekler, 2 M'C. Ch. 169. 
 
 ^ -, ^Ulmore, for the plaintiffs. The bill in the suit in which the 
 -I negroes were recovered, was in the name of the defendant and his 
 sister Eliza — the recovery was in the name of both. The marriage was 
 before the decree, and Mrs. Burgess' death after it. Mrs. Burgess had 
 then the same right to the possession that the defendant had, and Burgess 
 stood exactly in the same right his wife did. As to the objection that 
 the minor is not a party to this bill, it is now made for the first time. 
 The bill first sets up the claim of Burgess to the whole by virtue of his 
 marital rights, and if they have not attached, he then presents the claims 
 of his son as a distributee of his mother ; and it was shown on the trial, 
 that he had been appointed a guardian. 
 
 That there must be a reduction into possession before the rights of the 
 husband attach, is not denied. The question is, what shall be considered 
 such a reduction into possession ? It is not necessary that there should 
 be an actual manucaption by the husband, either personally or by his 
 agent. The possession of an agent before or during coverture, has been 
 held sufficient, as in the case of a guardian : Davis v. Bharae, 1 M'C. 
 Ch. 195. And in the late case of Riley v. Riley, (not rejiorted) decided 
 in this Court, May, 183o, the same doctrine is held. The case of the 
 Ordinary v. Geiger, 2 N. & M'C. Ch. 151, is still stronger, for it makes 
 tlie possession of a joint-tenant in negroes, vest the undivided fourth part 
 of them in the husband of one of the joint-tenants, even against herself, as 
 survivor of her husband. In what did that case differ from this ? That 
 was founded on a deed, " giving," says the defendant's counsel, " a right 
 of immediate possession." This is on a decree, giving an equally clear 
 and undisputed right of possession to both Heape and his sister. They
 
 *400] COLUxMBiA, DECEMBER, 1833. 273 
 
 were joint-tenants under that decree in the negroes recovered in their 
 names ; each equally entitled, and equally secured by the Court. Ileape 
 recovered the property as agent for his sister. If a partition was neces- 
 sary in this case, before the marital rights would attach, so it was ecpiallv 
 necessary in the case of the Ordinary v. Geiger ; and as it was not con- 
 sidered necessary there, so it will not be here. 
 
 *As to the defendant's second ground of appeal. — Should the r.;. ,., 
 Court determine that the marital rights of Robt. S. Burgess did L'"^^^ 
 not attach, then comes the question, is administration absolutely necessary 
 before complainants can recover ? As a general rule it is necessary to have 
 administration. It is a wise rule, intended to subserve the course of 
 justice and protect the rights of third persons; but like all other rules, if 
 inflexible, it would in some cases defeat its own object. When a case 
 occurs where it would utterly defeat the course of justice, every principle 
 of right and sound policy demands an exception to govern the case. 
 Exceptions have sprung up, been recognized and acted on. In the case 
 of Gregory v. Forrester, 1 M'Cord, Ch. Rep. 325, Judge Nott expressly 
 recognizes this principle ; — a number of cases are there referred to in 
 which the rule was relaxed: Burrows v. Elton, 11 Ves. 29, 39, Alsager 
 V. Rowley, 6 Yes. 150. In a late case in our own Courts, decided at 
 Charleston, Walker, administrator of Halls, v. John May, the following 
 facts existed and were considered by the Court as exempting defendant 
 from the technical enforcement of the rule. Hall the father gave by deed 
 four negroes to four sons and died — the widow married Robt. May. 
 All the children in succession died under age — Robt. May sold the 
 negroes and died, leaving his widow, and two children by her. Walker 
 married one of the daughters, administered upon the estate of the young 
 Halls, and filed his bill against the purchaser, John May. The Court 
 below, and the Appeal Court also, decided, that as all the rights of the 
 young Halls vested in the mother Mrs. Robt. May, no administration 
 was necessary — that creating an exception to the rule ; and to a sugges- 
 tion as to creditors of the young Halls, it was held, that that was rebutted 
 by the fact that ten or twelve years had elapsed and no claims were 
 presented. Is this case one of such a special character as will come 
 within the exceptions which are admissible ? In the first place let it be 
 observed. That Burgess in his own right and as guardian of his child, 
 represents every right that could have belonged to his wife. — Secondly, 
 That he used every effort to procure administration and failed. — Thirdly, 
 That the defendant has run away to Alabama, carrying away and selling 
 *the negroes, and is only to be reached through this suit, and the r:::4Q2 
 bond he has given under the ne exeat writ, or in the language of 
 the decree " should this bill be dismissed, and W. H. Heai)e be disclmrgcd 
 from the ne exeat bond, the complainants will be utterly remediless.'' 
 Could a stronger array of facts be presented showing the absolute and 
 utter failure o'f justice if the technicalities of the law are to be made 
 inflexible ? If so justice is sacrificed to forms, and rules of law relent- 
 lessly adhered to when every reason for their existence has failed. But 
 it is objected that the rights of creditors of Mrs. Burgess may be defeated 
 by supporting this decree. Are they in more, or less danger, from 
 reversing it and discharging defendant ? He has run away — wasted the 
 property — and the only possible chance of securing the fund to any person 
 Vol I.— 18
 
 274 SOUTH CAROLINA EQUITY REPORTS. [*402 
 
 whatever is upon the ne exeat bond, to which the security is good. 
 Again, when they put in any claims it will be fnll time to protect them — 
 there are none — not one has ever been heard of. This bill was filed the 
 23d May, 1821. The child of the marriage is stated therein under oath 
 at two years old, and of course Burgess had married his wife in 1817, or 
 1818. If she owed any debts lie was responsible for them. They were 
 paid or barred by the statute of limitations more than ten years ago. No 
 claims of creditors can exist ; but if they do, the fund is in Court, and 
 the defendant w^ill not object to its being i)aid into the Commissioner's 
 hands, and the oreditors called in to establish them and receive payment, 
 and the balance only paid out under the order of the Court. 
 
 If however the Court should determine that administration is necessary, 
 it will give time to complainants to make fnrther efforts, and in the mean 
 time will order the collection of the amount coming to them, and to 
 remain subject to the order of the Court. 
 
 As to the complainants' grounds of appeal : 
 
 1. As to costs, this case has arisen entirely from the bad faith and mis- 
 conduct of defendant, Wm. H. Heape, and he ought to pay the costs — at 
 the least he should pay his own. 
 
 2. The decree should be so remodeled as to allow the com])lainants to 
 *ifim obtain the value of their negroes, as they cannot *find the negroes, 
 
 -• they having been carried off'; or the decree should order, that in 
 case of the non-delivery of the negroes by a given day, the bond be 
 forfeited, and collected by the Commissioner in Equity. 
 
 Smith, Attorney- General, in reply. As to the first ground of appeal. 
 The case of the Ordinary v. Geiger, was a case of joint tenancy, not ten- 
 ancy in common. — It was a case under a deed, where the form of delivery 
 implies a right of possession in all of the joint tenants, and these charac- 
 teristics plainly distinguish it from the present case. 
 
 As an exception in this case to the rule that administration must be 
 taken out upon an estate, before suit can be maintained, the cases of 
 Burrows v. Elton, 11 Yes. 29, and Alsager v. Rowly, G lb. 750, cpioted 
 in Gregorin v. Forrester, 1 M'C. 325, were relied on, but neither of them 
 apply. These were cases where executors or administrators existed, and 
 the estates were represented, and they only determined that a rule existing 
 for the benefit of creditors may be waived in favor of creditors — they 
 determine, that creditors may maintain suit against the estate of their 
 debtor, where the executor or administrator is a bankrupt and cannot 
 act, or insolvent and colludes. But the case here is between a distributee 
 and a debtor of the estate. Is the debtor responsible to him without 
 administration, by which the rights of creditors will be protected ? The 
 cases of Heath v. Percival, 1 P. W. 682 ; Plunket v. Penton, 2 Atk. 
 51 ; Higginson v. Air, 1 Des. Rep. 427 ; Riddle v. Mandeville, 3 
 Cranch, 330 ; are all cases of creditors going against the heirs or the 
 funds of the estate. The case of Walker, adm'or, of Halls, v. John May, 
 decided in the Court of Appeals, in February, 1830, is certainly diff'erent 
 from these, but still not applicable to this case. In the following extract 
 from the decree, the Court says — "The circumstances of this case are 
 peculiar. The intestates were all infants and incapable of contracting 
 debts. They lived with Robert May, the husband of their mother, whose
 
 *403] 
 
 COLUMBIA, DECEMBER, 1833. 275 
 
 duty it was, and who did provide for them all that was necessary, and 
 whatever of legal obligation the law raised on them or their estates vested 
 in him. Thus, not only negativing *the existence of any other r-^ 
 interest, but showing the utter impossibility that any other could ^ "^^* 
 exist. All the objects of an administration have therefore been oljtained. 
 The possession of May did wrong to no one — he only had that to which 
 he was entitled. If he held in trust, it was for himself — if as executor, it 
 was in his own right instead of his own wrong," &c. This case then only 
 determines that where there can be no creditors, a rule made for the 
 protection of creditors must not be complied with or required. Here 
 the presumption is, that there are creditors. The intestate was capable 
 of contracting debts: and it appears that the complainant can give 
 adecpiate security as guardian of his child but not as administrator of his 
 wife. 
 
 As regards the plea of poverty, it is one so easily made, that it would 
 be exceedingly dangerous in practice. It is against the insolvency of the 
 administrator that securityship is intended to guard. But here it is con- 
 tended, that because a man is insolvent he is to give no security. A 
 man of property may act fraudulently with respect to an estate committed 
 to his charge, and yet justice be fully done by reimbursement from his 
 property. But he who has no property has nothing but his integrity on 
 which others can rely. Poverty is no argument for a good character, and 
 affords one of the strongest temptations for losing it. 
 
 Harper, J. I understand from the decree of the Chancellor, that the 
 slaves in question were deliyered to the defendant in the lifetime of Mrs. 
 Burgess. If so, I have no doubt the marital rights of her husband 
 attached upon them. The case of the Ordinary v. Geiger, 2 N. & M'C. 
 151, is in point; and it is strengthened by that of Davis v. Rhame, 1 
 M'C. Ch. 195. Mrs. Burgess and her brother were, I suppose, joint- 
 tenants of the slaves ; they claimed under the same title ; and it is a 
 familiar maxim for preventing the effect of the statute of limitations, that 
 the possession of one joint-tenant is the possession of the other. They 
 are regarded as agents for each other, to every beneficial purpose. 3 
 Bac. Ab. 690, Tit. Joint-tenants and ^tenants in common, H. 3. 
 So it is said, the entry of one tenant in common is the entry of 
 both, and must be so pleaded, lb. H. 2. With no propriety could Mrs. 
 Burgess' interest in the slaves in the possession of the defendant, be called 
 a chose in action. Her title was complete and vested. Delivery is said 
 to be necessary to consummate the title to personal property. But will 
 not a delivery to one joint-tenant enui'c to the benefit of both ? If not in 
 her, in whom was the title of a moiety of the slaves ? < 
 
 As the slaves have been carried out of the State, so that a writ of par- 
 tition could not be executed, the complainant applies, that the dcfenilant 
 may be directed to account for the value of the portion of them to which 
 the complainant is entitled, in right of his late wife. This is ordered and 
 decreed accordingly. In other respects, the Chancellor's decree is 
 affirmed. 
 
 Johnson and O'Neall, Js., concurred. 
 
 [*405
 
 276 SOUTH CAROLINA EQUITY REPORTS. [*405 
 
 B. W. Capehart and Wife, and others, v. Lydia Huey, Administra- 
 trix of Wm. Blackburn e, and the Administrators of John Huey, 
 deceased. 
 
 Where a wife, before marriage, had administered on an estate and done certain acts 
 amounting to devastavits, the moneys arising from which on her marriage went 
 into tne hands of her husband; after the decease of the husband on a bill filed 
 against her, and the administrators of her husband for an account of the funds 
 so received, it was held, that she was a competent witness on being released from 
 all liability to her intestate's estate; and perhaps even without such release. 
 [*407] 
 
 Generally those acts of a guardian are binding on the infant which are for the 
 benefit of the infant, and for which the guardian can account; he may therefore 
 in a suit brought for the benefit of his wards, e.iecute a release in order to render 
 a witness competent. [*4(i9] 
 
 The husband (or if he be dead, his administrator) is accountable for the funds of the 
 wife's intestate which have come into his or her hands during coverture, and 
 which may not be left in specie at the husband's death and go into the wife's 
 possession. [*410] 
 
 An executor or administrator who litigates in good faith, will be reimbursed out of 
 the estate for his costs and expenses, but the estate he represents, and which is 
 presumed to be benefited by the litigation, must bear the expense. [*411] 
 
 This bill was filed by the plaintiffs, as distributees of William 
 Blackburne, deceased, against his administratrix and the administrators 
 of her second husband, for an account of the estate, charging devastavits 
 in the course of the administration, and seeking to make the estate of the 
 second husband liable therefor. 
 
 On the case coming before Chancellor Johnston, at Abbeville, Jane, 
 1832, he ordered a reference to the Commissioner to make up the accounts, 
 reserving the legal questions until the coming in of the report. On this 
 reference the following facts appeared : 
 
 ♦ion *^'^'^- Blackburne died intestate, possessed of a considerable 
 ^-' personal estate, leaving a widow and children. The widow, 
 Lydia, administered and sold all the personal property. With $1,000 of 
 the money thus obtained, she purchased a tract of land, and took the 
 titles in her own name ; and she loaned $.500 of this money to Thomas 
 Blackburne, and took a bond for the payment to herself in her own right. 
 She afterwards intermarried with John Huej'. They sold the land for 
 $600, and Huey received the money, and he also received payment on the 
 bond of Thomas Blackburne. In 1830, John Huey died intestate, and 
 Owen Selby and Joseph Huey administered on his estate. On the 
 reference, Lydia Huey was offered as a witness for the plaintiffs. She 
 was objected to as incompetent ; but on a release of her liability being 
 executed by Thomas Blackburne, the assignee (after suit brought) of one 
 of the plaintiffs, and the guardian of the others, the Commissioner received 
 her as a witness. 
 
 On the state of facts here presented, the Commissioner in his report, 
 charged the estate of John Huey with the money received by him on the 
 sale of the land, and also with the money received by him on Thomas 
 Blackburne's bond, with interest on both amounts ; and allowed credit 
 for payments made by him on account of the estate ; but refused to allow
 
 *406] 
 
 COLUMBIA, DECEMBER, 1833. 277 
 
 the administrators a counsel fee in this case, out of the amount charged 
 against the estate of Huey. 
 
 To this report the admiuistrators of John Ilucy filed the following 
 exceptions : 
 
 1. That the Commissioner received the evidence of Lydia Huey, one 
 of the defendants, she being- incompetent to give evidence, and the release 
 not rendering her competent. 
 
 2. That the Commissioner cliarged the estate of John Iluey with the 
 sum he obtained for the land, when his estate is not liable therefor, inas- 
 much as the purchase by Lydia, the administratrix, iu her own name with 
 the funds of her intestate, was a devastavit for which the estate of John 
 Huey is not now answerable. 
 
 *3. Because Lydia was at all events guilty of a devastavit to r:i: ^a^ 
 the amount of four hundred dollars, the difference between the ^ 
 sum given for the land and that for which it sold. 
 
 4. That the Commissioner erred in charging John Huey's estate with 
 Thomas Blackburue's bond, inasmuch as the taking of this bond was a 
 devasfavit on the part of Lydia, the administratrix, for which the estate 
 of Huey is not now liable ; and also inasmuch as it was payable to Lydia 
 in her own right, and John Huey had no notice that it was for money of 
 the estate of Wm. Blackburne. 
 
 5. That the Commissioner refused to allow credit to the administrators 
 of John Huey for a counsel fee in this case, out of the sum with which 
 their intestate is char^^ed on account of Wm. Blackburue's estate. 
 
 The case was heard on these exceptions before Chancellor De Saus- 
 SURE, at June Term, 1833. The Chancellor overruled the four first 
 exceptions, and sustained the last. 
 
 The administrators of John Huey appealed, because the Chancellor 
 overruled the four first exceptions as above stated ; and the plaintiffs 
 appealed, because he sustained the last. 
 
 Burt, for the plaintiffs. 
 
 Noble and Calhoun, for the administrators of Huey. 
 
 O'XeaIvL, J. The questions made in this case may be referred to 
 three general heads, to wit : L The competency of the witness, Lj'dia 
 Huey. 2. The liability of the representatives of her (deceaseds husband, 
 John Huey, to account for the funds of William Blackburne, (deceased,) 
 which came to his hands, during the coverture of the said Lydia. 3. The 
 propriety of the allowance of the counsel fee to the defendants' solicitor 
 out of the funds of Wm. Blackburne, (deceased). These subjects of 
 inquiry embrace all the grounds of appeal taken by the complainants as 
 well as the defendants ; and will be considered and clecided in their order. 
 
 L The fact of being jjarticejjs cynminis, will not render a witness 
 incompetent to testify for or against the other parties : it generally goes 
 to the credit and not the competency: it is *true that when the r^^Qg 
 witness's testimony would subject him to punishment or infamy, he 
 may decline to answer the questions propounded to him. But this is the 
 protection of the witness; it would be no objection in the mouth of either 
 plaintiff or defendant. A party to a deed, contract or other matter, is a
 
 278 SOUTH CAROLINA EQUITY REPORTS. [*4:08 
 
 competent witness unless disqualified by interest in the event, or in the 
 record as matter of evidence. Knight v. Fackhard, 8 M'C. 71. 
 
 To determine on the competency of the witness, Lydia Huey, it is 
 necessary to inquire as to her interest in the event of the suit to be pro- 
 duced by her testimony. For although she is a defendant, and at law 
 could not be sworn, yet in equity the rule is, that she is competent if she 
 have no interest in the point to which her testimony is directed. Wright 
 V. Wright, 2 M'C. C. R. 105 ; Farr v. Sims, et al., decided at this place, 
 January Sittings, (in Equity,) 1832. 
 
 There is, I think, no doubt that she, as well as her late husband, Huey, 
 is chargeable with the fund in question, and a decree against him, would 
 not of itself discharge her : Adair v. Shaw, 1 Sch. & Lef. 255. It must 
 be accompanied with satisfaction to have such an effect against the claims 
 of the complainants. I think she might have been a witness for the" com- 
 plainants without a release. For her evidence, establishing the lialjility 
 of John Huey, would not of itself discharge her : it only subjects his 
 estate to a concurrent, but not a paramount liability, and hence she had 
 no direct ])ecuniaiy interest in the event of the suit, or in the record as 
 matter of evidence. 
 
 But if there is a doubt on the position assumed, there can be none as 
 to her competency if she has been properly released. This depends upon 
 the power of Thomas ]>lackburne legally to release her. 
 
 It seems that the complainant, Capehart, assigned his wife's interest to 
 Thomas Blackburne, who is the guardian of the minor complainants. As 
 assignee and guardian he executed the release, It is necessary, therefore, 
 to look to his power in each of these characters. 
 
 The husband had the right to receive from the defendants his wife's 
 *4noi distributive share of her father's personal estate ; *such a re- 
 -l duction into possession would defeat the wife's equity. So, too, 
 the husband might assign it ; and if the assignee for a valuable con- 
 sideration can and does reduce it into possession without the aid of the 
 Court of Equity, her equitable rights would not be allowed to be set up 
 against his legal estate. Clancy's Rights of Married Women, 445. In all 
 cases where the wife's ecpiity, and the husband's or his assignee's right to 
 possession, are brought into collision, the wife, or the Court for her, must 
 make the question ; if she is content that the question should not be made, 
 the defendants who may be in the possession of her funds cannot make the 
 objection. — After there is a recovery at the instance of the assignee, and 
 before he reduces the fund into actual possession, the Court might inter- 
 fere and set up the wife's equity. The assignee of the husband has, in 
 equity, all the rights which he has ; in it, he is regarded to all intents 
 and purposes as the owner of the funds assigned, His release will operate 
 to the same extent which the husband's would. The husbaiul may 
 release the chose in action of his wife, and his release would at all events 
 bar and prevent any recovery upon it during his life. I think it would 
 operate as an entire discharge. Either point of view is enough for this 
 case ; for if the release is only good for the life of the husband, it is a dis- 
 charge of the witness from any present interest in the event of the suit — 
 it may be that a future possible interest may exist, but this would be 
 only an objection to the credit and not the competency. 
 
 A guardian, as the ofQcer of the Court of equity, is charged with the
 
 *409] COLUMBIA, DECEMBER, 1833. 279 
 
 the preservation of all the rights and interests of the ward. Tie caiinot, 
 however, generally, change the nature or diminish the capital of the 
 estate ; but with this exception, he is authorized to do any act for the 
 infant which a prudent man in the management of his own business 
 would do. Such an act must of necessity fall within the rule which is, I 
 think, well stated in Bingham's Law of Infancy, 152, to be, that " it 
 seems generally that those acts of the gnardian are binding on the infant, 
 which are for the benefit of the infant, and for which the guardian can 
 account; for so far his authority extends." In Milner v. Lord Hare- 
 wood, 18 V. Jr. 259 — it *was held that an act of the guardian r^.^ir. 
 without authority, if beneficial to the infant, would be sustained. •- 
 
 The release here is an act for which the guardian can and must 
 account, if he thereby fails in recovering the shares of his wards. No 
 loss can result to them in this respect, for his release makes him per- 
 sonally liable for the fund ; and it is to be presumed that he has given 
 good security for the discharge of his duties. So far I think there is no 
 difficulty in allowing his release to prevail. It does not change the 
 nature or diminish the capital of his ward's estate in the hands of the 
 defendant or in those of the guardian ; they are alike money, and 
 the amount continues the same. The release is only the means of 
 reaching the justice of the case, and fixing the defendants' liability. It 
 may be (and I ought so to conclude) that the defendants' liability is a 
 better security for the wards of the guardian, than Mrs, Huey's. The 
 release is, I think, good, and the witness competent. 
 
 2. This brings up the question, are the administrators of John Iluey 
 liable to account for the proceeds of the land, and also for the amount 
 received on the bond ? In the case of Adair v. Shaw, 1 Sch. & Lef. 255, 
 Lord Chancellor Redesdale decides the very question as to the general 
 liability of the surviving husband or his representatives, (if dead) to 
 account for the funds of an intestate which came to his hands during 
 coverture, through the administration of his wife. He says, "but on 
 principle, and what I conceive to be the established rule of Courts of 
 Equity, I think there can be no doubt that Mrs. Shaw is responsible, and 
 that the assets of Mr. Shaw are responsible to this extent, viz. : Mrs. 
 Shaw for the whole, and Mr. Shaw's assets for whatever came into his 
 hands, that is what came to the hands of himself or his wife during the 
 coverture, except so far as Mr. Shaw left assets in specie of the testator, 
 after his death, which might have come into the hands of Mrs. Shaw : 
 whatever might have been so left he would not have been accountable 
 for, but she alone would." 
 
 Taking it to be well settled law, that the husband or his administrator 
 is accountable for the funds of the wife's intestate which may come to his 
 or her hands during coverture, and ''nvhich may be not left in p^jj 
 specie at the husband's death and come to the wife's possession, it 
 is only necessary to inquire how the facts stand in this case. It seems 
 that Mrs. Huey with the funds of the estate of Ulackburne purchased a 
 tract of land and took the title in her own name ; that subsequent to her 
 second marriage she and her husband sold it, and he received the pro- 
 ceeds of the sale. It is plain, on authority and principle, that on the 
 purchase of the land by the admiiustratrix of Blackburne with the funds 
 of his estate, a trust resulted in favor of the estate : and the land or its
 
 280 SOUTH CAROLINA EQUITY REPORTS. [*411 
 
 proceeds when sold, were the assets of the intestate Blackburne. Watson, 
 Ordinary, v. Whitten,(a) decided at this place, May Term, 1832. The 
 proceeds of the land being assets and coming to Mr. Huey's hands 
 during coverture he is properly charged with the amount thereof. The 
 bond is still plainer, for that was given for the money collected and 
 loaned by the administratrix, as was her duty; the amounts received 
 upon it by Mr. Huey, were received by him in a plain course of adminis- 
 tration, viz. : to receive and let to interest the money of the intestate — 
 and he is accountable for the sums which he so received. 
 
 3. I think there can be no plainer proposition than that the defendants, 
 the administrators of Huey, are not entitled to charge and be allowed 
 against Blackburne's estate, the counsel fee paid to their solicitor in this 
 case. The general rule in equity is settled in so many cases that it has 
 ceased to be necessary to refer to them to establish its existence — that an 
 executor or administrator who litigates in good faith is entitled to be 
 reimbursed out of the estate for his costs and expenses. The estate 
 represented by the executor or administrator and legally presumed to be 
 benefitted by the litigation, is the one which must bear the expenses. In 
 this case the defendants the administrators of Huey represent his estate 
 alone, and for its benefit their defence was made, and out of it the counsel 
 fee is properly payable. Blackburne's estate is not represented by them, 
 they stand in no relation of confidence to it, their claim and defence 
 are hostile to the rights of the complainants, and were an injury instead 
 of a benefit to the estate represented by the complainants. The 
 *41^1 *^^^ow^^ce of the counsel fee out of Blackburne's estate was 
 ''^ improper. 
 
 It is ordered and decreed that the Chancellor's decree be reformed as 
 to the allowance of the counsel fee of defendants' solicitor out of the 
 estate of Wm. Blackburne ; in all other respects it is affirmed, and the 
 Commissioner's report confirmed generally. 
 
 Johnson and Harper, Js., concurred. 
 
 Ex parte Forgy M'Cleland. 
 Costs not allo-wed for a defence to a petition in Chancery. [*412] 
 
 Newberry, July, 1833. This was a petition praying compensation for 
 the board of certain minors, of whom the defendant, Rudd, was guardian. 
 The petition was resisted, and on the hearing before Chancellor Be 
 Saussure, dismissed with costs. In taxing the costs, the Commissioner 
 refused to allow costs to the defendant's solicitor, for filing the answer 
 and making the defence. On appeal to the Chancellor, he ordered the 
 costs to be taxed ; and an appeal was taken to this Court. 
 
 Caldwell and Fair, for the motion. 
 
 Dunlap and Summer, contra. 
 
 Johnson, J. None of the acts of the legislature regulating the fees of 
 (a) Not reported.
 
 *412] COLUMBIA, DECEMBER, 1833. 281 
 
 the officei's, make any provision for a defence to a petition in tlie Court 
 of Chancery, and however me-ritorious the claim may be, the Court lias 
 no authority to regulate it. Costs are not allowed by the common law, 
 and whoever claims to charge them, must put his finger upon the Act 
 which allows it. The order of *the Circuit Court, directing that 
 ten dollars should be taxed as costs, is therefore reversed, and the 
 motion in behalf of the defendant is dismissed. 
 
 O'Neall and Harper, Js., concurred. 
 
 [*413 
 
 William Pinchback vs. JamEs M'Craven, 
 
 Generally, where a party makes a single question in a case, and tbat is tleciileJ 
 against him, he will not be entitled to costs; if he make several questions, some 
 of which are decided for. and others against him, he will be entitled to tax costs 
 under a decree allowing them to him. [*413] 
 
 A charge for copies of opinions of the Appeal Court is admissible. [*4i4] 
 
 Abbeville, June, 1833. The plaintiff had obtained a decree in this 
 case against the defendant, for a certain amount with costs. In the pro- 
 gress of the case the plaintiff filed an exception to the Commissioner's 
 report, which was overruled by the Chancellor — an appeal taken thereon, 
 and the Chancellor's decision sustained by this Court. In taxing costs, 
 the Commissioner allowed the plaintiff's solicitor costs, for the exception, 
 the argument in the Court below, and the briefs and argument in this 
 Court ; and he also taxed costs against the defendant for copies of the 
 opinions of this Court, which, however, it was admitted, were necessary 
 on the trial. Chancellor De Saussure sustained this taxation, and the 
 defendant appealed. 
 
 Burt, for the motion. 
 
 Caldwell, contra. 
 
 O'Neall, J. We think that the complainant is not entitled to tax 
 the costs of his exception to the Commissioner's report, the argument in 
 the Circuit Court, the briefs for, and argument in, the Court of Appeals. 
 
 It seems that the complainant was dissatisfied with the Commissioner's 
 report in a single point. That was decided against him by the Chan- 
 cellor, and on it alone he appealed to this Court, where the decision was 
 also against him. His costs, incurred in this respect, were therefore 
 ^unnecessary, and his adversary is not bound to pay them. Gene- r^^j^ 
 rally, where a party makes a single question in a case, and that is 
 decided against him, he cannot and ought not to expect costs. He is, 
 in this respect, in default. If, as is most usual in Chancery, he makes 
 several questions, some of which are decided for him and others against 
 him, he would be entitled to tax costs under a decree allowing them 
 to him. 
 
 The charge for copies of opinions of the Court of Appeals, was pro- 
 perly allowed— it was cost actually paid, and for which the party paying 
 it was entitled to be reimbursed.
 
 282 SOUTH CAROLINA EQUITY REPORTS. [*4] 4 
 
 The Chancellor's decree is modified according to the rules stated in 
 this opinion ; and the Commissioner is directed to reform his taxation 
 accordingly. 
 
 Johnson and Harper, Js., concurred. 
 
 John C. Vaughan, and others, official creditors of Thomas P. Evans, 
 Commissioner in Equity, vs. Thomas P. Evans, Thomas Lang, 
 John Cantey, John Whitaker, Ben. Hale, and others. 
 
 Where a Commissioner in Equity who had be^n re-elected at the expiration of his 
 first term, had received moneys during his first term which were not demanded 
 or ordered to be paid over or invested during that term, the securities to his 
 official bond for the first term are not liable therefor, unless it be shown that the 
 Commissioner had wasted, or converted to his own use, the funds in his hands; 
 and in the absence of such evidence, the presumption is that he retained the 
 funds and that they were in his hands as his own successor. [*428] 
 
 But where the Commissioner, by orders of the Court during the first term, was 
 directed to pay over a part of the funds then in his hands, and to invest a part, 
 and neglected to comply with these orders; it was held, that the failure to pay 
 over or invest, was a breach of the condition of the bond, and that the application 
 for such an order was prima facie evidence of a demand, and the sureties to the 
 bond of the term in which the orders were made were liable. Harper, .J., 
 dissenting, held with Chancellor Johnston, that the orders to pay over were only 
 an authority to pay over, and that there was no default until demand made; and 
 that the failure to invest could only make the sureties liable for the interest 
 which would have been made if the funds had been invested. [*429] 
 
 An assignment by a debtor to a trustee, in trust, first to pay existing liens ; second, 
 to pay his sureties whatever sums they might have to pay for his defaults as 
 Commissioner in Equity; third, to pay the balance to such of his creditors as 
 should exhibit their demands within a year, and agree in writing to take a 
 dividend of the surplus; is valid. [*430] 
 
 Kershaw. In December, 1821, Thomas P. Evans, one of the defend- 
 ants, was elected Commissioner in Equity, for Kershaw District, and on 
 the 20th of that month executed his official bond for $10,000, conditioned 
 for the faithful discharge of his duties as Commissioner, for four years ; 
 in which bond the defendants, Thomas Lang, John Cantey and Benjamin 
 Hale joined as sureties. At the expiration of his term, he was re-elected 
 Commissioner, and on the 6th February, 1826, he executed another official 
 
 =415] 
 
 *bond of that date, in which Thomas Lang, John Cantey and John 
 Whitaker joined as his sureties. Evans failed to discharge his 
 duties as Commissioner, and his official creditors being about to sue his 
 bond for the second terra, his sureties thereto, Lang, Cantey and Whita- 
 ker, filed a bill in Chancery on the 1.3th July, 1830, against the present 
 defendants, the Charleston Fire and Marine Insurance Company, and the 
 present complainants, the Yaughans, calling upon them and all others 
 who had claims against Evans, under his second bond, to come in and 
 prove their demands before the Commissioner, and praying that suits at 
 law might be enjoined, and the sureties discharged upon paying into 
 Court the amount of the said bond, $10,000, if the defaults during the 
 second term amounted to that sum. In that suit various creditors came
 
 1,59G 
 
 55 
 
 129 
 
 31 
 
 96 
 
 83 
 
 228 
 
 39 
 
 262 
 
 60 
 
 3t8 
 
 33 
 
 297 
 
 36 
 
 *415] COLUMBIA, JANUARY, 1834. 283 
 
 in, to wit : — all tlie parties to this suit as complainants and defendants, 
 (except Evans and his sureties,) and proved their demands under the 
 order of the Court, and the Commissioner reported their united claims 
 against Evans, for defaults during his second term, to amount to the sum 
 of $32,935 98^. Of the moneys so reported against Evans and his 
 sureties, under the second bond, the following were received by Evans 
 during his first term, and never paid over to the parties thereunto entitled, 
 to wit : 
 
 Charl'u Fire and Mar. Ins. Co. (part of their claim), $\ 
 
 Edward Newhall, 
 
 T. & F. Dwight, 
 
 Thomas Scott, 
 
 John Hudson, ........ 
 
 Gr. Archer & H. M. Archer, (part of their claim), 
 
 Lene Dubose & N. Dubose, besides interest from March, '25, 
 
 James Dunlap's estate, ....... 
 
 J. C. Yaughan, E. V. Yaughan, and C R. Yaughan, part 
 
 of their claim, besides interest from 20th March, 1825, 2,599 45 
 
 At June Term, 1825, during the first term of office, an order was made 
 by the Court, in the case of J. Chesnut and *G. L. Champion, r^nf 
 and the Charleston Fire and Marine Insurance Company, that '- 
 Evans should pay to the Insurance Company all the money then in his 
 hands, or which might come to his hands, being the proceeds of the 
 bonds due by the Chesnuts, with which order he failed to comply. 
 
 At June Term, 1824, he was ordered by the Court to invest $1,000 
 which he had received as the property of H. M. & G. Archer — he did 
 invest $800, but failed to invest $200, and has never paid it over or 
 accounted for it. At June Term, 1825, he was ordered by the Court to 
 pay to the Commissioners of the Poor, $131, which he had received of 
 the estate of the lunatic John Craven, with which order he failed to 
 comply. Except in the cases stated, there were no orders by the Court, 
 during the first term, to pay over ; and there was no proof of any demand 
 made in any of the cases during the first term. In Archer's case and in 
 others, the funds were in his hands in the shape of bonds, which he has 
 never accounted for during either his first or second term. Upon going 
 out of office at the close of his first term, he did not, as required by law, 
 turn over to his successor, or deposit among the records of the Court, his 
 account book, in which his accounts with the estates under his charge 
 were, or ought to have been kept ; nor the moneys, bonds, notes and 
 other property held by him as Commissioner, under the authority of the 
 Court; nor did he sign any schedule or account, showing what remained 
 in his hands at the expiration of his office. 
 
 William J. Grant, Esq., was elected the successor of Evans, and on 
 the 18th of January, 1830, entered upon the duties of his office. Evans 
 has not turned over to him the bonds and moneys of the plaintiils, nor 
 paid the plaintiffs. On account of his official defaults during his second 
 term, he is indebted to the plaintiffs and other suitors in Court, in an 
 amount far exceeding his official bond. 
 
 On the second April, 1830, Lang, Cautey and Whitaker, the sureties 
 for the second time, finding that Evans was a defaulter to a large amount,
 
 284 SOUTH CAROLINA EQUITY REPORTS. [*416 
 
 and that his private property would not be adequate to make good his 
 ofBcial defaults, procured Evans to make an assignment of all his 
 *4T'"1 ^'^^tate to a trustee iu trust, first to pay judgments and execu- 
 -l tious, which were liens ; then, second, to pay Cantey, Lang and 
 Whitaker, whatever they might have to pay for Evans' defaults : third, 
 to pay the balance to such of Evans' creditors as should exhibit their 
 demands in a year, and agree in writing to take a dividend of the surplus. 
 The trustee accepted the trust, and received upwards of $7,000 of Evans' 
 private estate. With the same view the sureties on the 12th March, 1830, 
 took from Evans a bond for $20,000, and a confession of judgment thereon, 
 and have lodged execution. The amount of both the official bonds together 
 will not be sufficient to satisfy the demands of the official creditors, and 
 at all events, if the official sureties are allowed to sweep from the official 
 creditors all Evans' private estate, the plaintiffs and creditors under the 
 second bond will not receive thirty-three per cent, of their demands. 
 The bill is filed by the plaintiffs claiming under the second bond, to com- 
 pel such of Evans' official creditors as have a right to demand payment 
 from either the sureties to the first or second bond, at their option, to 
 resort to the first bond and leave to the plaintiffs, who have only a single 
 fund, the benefit of the whole of it. The prayer is, that all may come in 
 and establish their demands, and that the plaintiffs may be paid out of 
 the second bond. That the assignment to the trustee, &c. may be set 
 aside, or that the trustee hold in trust for the plaintiffs. 
 
 The plaintiffs offered to prove by a witness that the property of Evans 
 was very small when he first went into office, and that he was dependent 
 for his support upon the profits of his office. That the property he 
 assigned in trust for his sureties, was purchased with funds in his hands 
 as Commissioner, paitly during his first term, and partly during his second 
 term. The Chancellor overruled the testimony. 
 
 Johnston, Chancellor. The object of this bill is, 1st, to set aside the 
 judgment confessed by Evans to the sureties to the second bond, and the 
 assignment in trust, executed by him to John M. De Saussure ; 2d To 
 *4181 '^^^^^S® certain of the claims *against Evans, as Commissioner, to 
 -I his sureties for his first term of office, instead of his sureties for 
 his second term. 
 
 I. If the assignment stands, the judgment by confession must, for the 
 last is less assailable than the first. I shall therefore confine myself to 
 the assignment. 1 Kent Com. 420. 
 
 It is not denied that a debtor, in failing circumstances, may, by assign- 
 ing his estate in trust, prefer one creditor over another, if the assignment 
 be executed in good faith, and if it destroy no existing lien, unless there 
 exists, in the country, a bankrupt, or other law, prohibiting a preference. 
 Seaving v. Brinkerhoff", 5 J. C. R. 332. 
 
 We have no law prohibiting a bona fide preference of one creditor 
 over another. " Undue" preferences are prohibited : which word " un- 
 due" has been construed to mean only fraudulent preferences. P. L. 457 ; 
 2 Brev. 137 ; 2 M'C. R. 366. 
 
 That liens did exist at the term of the assignment, the assignment 
 itself recites. But I do not perceive evidence that any of the claimants 
 before the Court held liens at that time. Some of them, the Insurance
 
 *418] COLUMBIA, JANUARY, 1834. 285 
 
 Company, for instance, had obtained orders that Evans should pay over 
 to them moneys in his hands as Commissioner; but this formed no lien 
 on his property. The only effect of such orders, was to subject him for 
 failure to obey them, to process in personam. Although, upon the foot 
 of the orders, proceedings might have been instituted against him, which 
 would have eventuated in judgments which would have bound his pro- 
 perty, the orders themselves formed no liens. 
 
 The claimants here, having no liens at the assignment, cannot take 
 advantage of liens held by persons not before the Court, to set the 
 assignment aside — throw the assigned property into assets, and thus 
 entitle themselves to a share of it. 
 
 The assignment not being alfected by existing liens, is it affected by 
 any other circumstance ? 
 
 The first objection to it is, that it was fraudulent, inasmuch as it was 
 intended to indemnify his sureties, at the expense of the very persons 
 whom, by the spirit of their undertaking, the sureties were bound to protect. 
 The arguments of counsel on this point could not fail to produce a 
 powerful effect on the Court. But however strong may be the appear- 
 ance of policy and justice, by which they *are supported, it must pxciiq 
 never be forgotten that to the judicial tribunals the people have '- 
 not delegated a particle of legislative power. The question for the Court 
 is, what is the law ? Whatever the law is, that is what the sovereign 
 authority has decided as its rule of policy and justice. Whenever that 
 authority ceases to consider its rule as either politic or just, it can and 
 will change it. The power of repeal or amendment is with it, to be 
 exercised through the Legislature, and not with the judiciary. 
 
 Whether it is fraud for the surety of an insolvent ofBcer to take an 
 assignment of his property, for indemnity, is the precise questioned nega- 
 tived in Hooe's case, 3 Cranch, 73, a case of great interest, and decided 
 upon full consideration. 
 
 But the assignment from Evans is attacked on its terms. The pro- 
 visions objected to are — 1st. The power given to the trustee to sell upon 
 such credit as be may deem fit. 2d. The declaration that after paying 
 off the existing liens, and indemnifying the sureties, such creditors as 
 would, within a year accept, should be paid rateably. 
 
 It is said that these provisions tend to delay and hinder Evans' credi- 
 tors in their remedies. 
 
 1. The power given to the trustee to sell upon such credits as he may 
 deem best, is not to be construed as necessarily intended to delay the credi- 
 tors. It may be and ought rather to be considered as one of the means of 
 advancing their interests, by procuring the best price for the property. 
 To say that the trustee might abuse this power, is no argument against 
 the trust itself If he had attempted to act captiously or fraudulently 
 under his power ; if he had shown, in any way, that he was not governed 
 by a sound discretion, or that he was disposed to defraud the creditors, 
 who are his cestui que trusts, they could have enforced an honest execu- 
 tion of his duties. This was a sufficient safeguard to the creditors 
 against fraud. 
 
 "It may be said," with truth, American Jurist, Xo, 10, p. 205, "that 
 every conveyance, in trust for creditors, interposes a delay, and neces- 
 sarily retards them in the prosecution of their remedies." But " if any
 
 286 SOUTH CAROLINA EQUITY REPORTS. [*419 
 
 creditor complains of this, the ground of his complaint must be, that be 
 *A9ai ^^ deprived of the opportunities of securing *his whole debt, at 
 - the expense of other creditors equally meritorious. He is pre- 
 vented from making use of an advantage against other creditors, not 
 from enforcing his rights against the debtor himself. " 
 
 2. The declaration that the residue after paying off liens and indemni- 
 fying the sureties, should be distributed rateably among such creditors 
 as would accept within a year, does not, in my opinion, vitiate the 
 assignment. 
 
 The argument is, that it was an attempt to drive the creditors into 
 terms : and decisions are referred to in support of this position. I think 
 the decisions do not support it. 
 
 In Lord v. The Watchman, American Jurist, No. 16, p. 284, "there 
 was a condition in the assignment, that all creditors who became parties 
 to it, thereby released the assignor from all further claim of the demand." 
 There was an attempt to drive the creditors into terms. The terms to 
 which they were attempted to be driven was a release of their claims, 
 and if they did not accept on that condition, they were to be excluded. 
 
 The case turned upon the attempt to coerce the creditors to release, 
 lb. 292-4-5. 
 
 In Hyslop v. Clark, 14 Johns. R. 458, 463, the assignment contained 
 a similar condition ; and the judgment turned on it. 
 
 Seaving v. Brinkerhoof, 5 Johns. C. R. 329, was on a conveyance 
 containing a condition that creditors should not take unless they released. 
 There existed liens, and the decision partly turned on them : but that has 
 no application here. The condition compelling a release was the prin- 
 cipal, and only other ground of setting the conveyance aside, or enjoining, 
 which is the same thing. 
 
 Mr, Justice Ware, who decided Lord v. The Watchman, says, the 
 assignor " had a right to lock up his property against any one creditor, 
 for the benefit of all, and he had a right to determine the order in which 
 his creditors should be paid out of the trust fund." He says, "Lord 
 transferred the whole of his property to Watts and Pray, in trust for the 
 purpose, first, of paying such creditors as should become parties to the 
 deed, in the order of preference established by the assignment. Thus far, 
 it is admitted, he had a right to go. 
 
 In another part of his opinion, the. same learned judge shows most 
 *4.91 1 clistinctiy the ground upon which he set the assignment,* in that 
 -' case, aside. "A creditor," says he, "who is postponed, cannot 
 avoid the conveyance, because he may take what the favored creditors 
 leave for him, and still pursue his remedy,- for what remains, against the 
 debtor." But " the debtor cannot compel a creditor to receive, in satis- 
 faction for his debt, any thing short of the full amount due." 
 
 Mr. Justice Van Ness, in delivering the opinion of the Court in Hyslop 
 V. Clark, takes his ground thus, " One object evidently was to coerce the 
 creditors to acquiescence in the terms offered to them." The language 
 held to them is, "if you will release your debts, you may participate." &c. 
 
 Now, for anything contained in Evans' assignment, every one of his 
 creditors, after accepting, would have been still at liberty to pursue Evans 
 and any other property he then had or might subsequently acquire. 
 Where then is the contrivance to drive any of them to terms ?
 
 *421] COLUMBIA, JANUARY, 1834. 287 
 
 The postponement of the claimants here to the liens and to the claims 
 of the sureties was lawful. They were offered a fair chance and an equal 
 chance after that, if they would accept, and there was no condiiion 
 annexed to the acceptance. If any of them chose to accept, he could 
 still retain all his remedies for any balance which the assigned property 
 left unpaid. If any of them chose not to accept, can he make it a ground 
 to impeach the assignment, that by reason of others accepting while he 
 stood back, he, himself, and not Evans, gave those others a preference 
 over him ? I think not. 
 
 3. It is objected that the assignment is silent as to what is to be done 
 with any overplus, that might exist, after paying the liens, the sureties 
 and the accepting creditors — that, therefore, as to such overplus, a trust 
 results to Evans, which is a preference of himself over his creditors, and 
 avoids the assignment. 
 
 What results to Evans, and in what case is it to result ? 
 
 By the terms of the assignment any creditor is allowed and invited to 
 come in, and take without condition of the assets, until his debt be fully 
 paid, or the assets exhausted. If the assets do not hold out, there is 
 nothing to result to Evans. If there is an overplus, the creditors who 
 have been paid cannot complain. The only case in which anything could 
 ^result to Evans, without paying every creditor or exhausting the r^jc i^c, 
 assets, would be when a creditor, to v/hom the property had been L 
 unconditionally surrendered, with an invitation to accept his whole 
 debt or his just proportion of the assets, had defrauded himself by obsti- 
 nately refusing to be paid. 
 
 But an assignment to be set aside must be fraudulent on the part of 
 the maker. The person seeking to set it aside must show fraud in that 
 quarter. It is not sufficient merely that he has been defrauded, if it turn 
 out that all are innocent of that fraud but himself. All that a creditor 
 has a right to expect of the law, is, that it secure him a fair chance to be 
 paid, and a protection against the frauds of others. In this case, the 
 assignment gave each creditor a fair chance, and no one has practiced 
 any fraud on the creditor. 
 
 But it by no means follows from what I have said, that if there were any 
 surplus in "the hands of the trustee, the Court would permit that to go to 
 Evans, in preference to any creditor who had not accepted. All that I 
 have said is, that such creditor, in such case, cannot overturn the assign- 
 ment. 
 
 If it were not clearly given up that the trust property has fallen short 
 of the liens and the indemnity of the sureties, I would order the trustee 
 to account for the assets, in order to decree payment to the creditors 
 here, out of the surplus. But it is conceded there is no surplus. The 
 assignment and confession of judgment must stand. 
 
 II. The second matter to be considered is, whether any of the claims 
 are chargeable to the sureties of Evans' first term of office. 
 
 Let us consider the claims which it is contended should be so charged, 
 separately. 
 
 1. The claim of the Charleston Fire and Marine Insurance Comi)any. 
 The fund was received and partly disbursed, during the first term of 
 office, leaving a balance in Evans' hands during that term. 
 
 On the 10th June, 1825, and during the first term, this Court in the
 
 288 SOUTH CAROLINA EQUITY REPORTS. [*422 
 
 case (John and James Chestnut v. The Charleston Fire and Marine 
 Insurance Company, and others,) in which the fund had been paid into 
 Court, " ordered that *the funds now in the hands of the commis- 
 -^ sioner, and such as may come into his hands, before the final 
 report, be paid over to the Fire and Marine Insurance Company — subject 
 to the rights of the contesting claimants, and subject to the further 
 order of this Court." 
 
 There is no evidence that tbe money was ever demanded from Evans by 
 the Insurance Company. 
 
 The principles of Wright v. Hamilton, 2 Bailey R. 51, are as appli- 
 cable to a commissioner as to a sheriff". That case is, therefore, an 
 authority that a right of action could not arise to the Insurance Com- 
 pany against Evans, until demand of payment. If he was not liable 
 neither "are his sureties. But if no action could have been maintained 
 against him, it was because he had committed no official default. 
 
 Then up to the last day of his first term, he was guilty of no default as 
 respects this fund, unless it was misconduct to perform his duty, by 
 receiving it and holding it until demand. 
 
 On the last day of his first term it was his duty to turn it over to his 
 successor in office, (Act of Assembly, 1823.) But he was that successor 
 himself. He, by this succession, became debtor himself, and creditor of 
 himself. The person bound to pay, was then also the person to receive. 
 Did he demand of himself ? What must have been the answer he gave 
 himself? "The money is in your own pocket. You are paid. I have 
 turned over the money to you. Give me a receipt: or if you cannot do 
 that, charge yourself, in your books, as my successor, with the fund." 
 
 Now, if he had the money as successor, and being in office as successor, 
 failed to charge himself with it, was not that a default in his second term ? 
 And are the sureties for the first term to be charged, ex pout facto, for 
 that ? Are they to be charged for the misconduct of the principal of 
 another set of sureties ? 
 
 It appears to me the decision in Waukford's case, 1 Salk. 229 ; 3 lb. 
 262 ; and in Cobb's case, 2 Bailey, 60, go to the discharge of the sureties 
 for the first term. 
 
 2. The claims of the children of Willie Yaughan is still less tenable. 
 *j.-'>4i *There was no order to pay out the fund received by Evans 
 
 -' during his first term. There was no demand. Nor could any 
 payment have been made to the children, they being infants. 
 
 3. Edward Newhall's claim. 
 
 The fund was received during the first official term : no order made to 
 pay out — nor any demand until the second term. Of course, upon the 
 principles I have applied to the foregoing claims, this cannot be charged 
 to the first set of sureties. 
 
 4. Tim. and F, D wight's claim stands on the same ground as New- 
 hall's. 
 
 5. So, also, does Thomas Scott's. 
 
 6. John Hudson's claim. 
 
 The fund was received during the first term of office : no order to pay 
 out, nor demand made. The first set of sureties are not liable for this 
 claim. 
 
 7. H. M. and G. Archie's claim.
 
 *-424] COLUMBIA, JANUARY, 1834. 2S9 
 
 A tliousand dollars were raised during the first term, and ordered to be 
 invested. Evans oidy invested eijrht hundred ; vvliich he receivei] back 
 again in the second terra. It is not contended that the first sureties are 
 liable for the eight hundred dollars. But it is contended that tliej' are 
 responsible for the two hundred, on account of Evans' defaidt in not 
 complying with the order to invest them ; and so they are ; but not under 
 the charges in this bill. No such default was alleged, and the j^roof 
 must be rejected : 1 Br. C. C. 94 ; 14 J. K. 501 ; Gilb. 219 ; 6 J. R. 543 ; 
 Mitf. PI. 34 ; 2 Atk. 182; 2 Ves. 225 ; 11 Ves. 240. 
 
 8. The claim of Lene Dubose's children. 
 
 Carter, who was Evans' predecessor in ofSce, was ordered to take 
 charge of, and did take charge of these children's slaves. When Evans 
 came into office, he acted as Carter had acted, but without special order. 
 
 The slaves were hired out, and notes taken for the hire, which notes fell 
 due the 20th March, 1823, in Evan's first term. There is no evidence wh-^n 
 these notes were paid, but they were paid, and the principal has been paid 
 out. A claim is now made for the interest which accrued from the maturity 
 of the notes, until the principal was paid out. * And it is contended r^^: , 9,- 
 that the first set of sureties is liable for it — although there was no L 
 order to pay it, nor demand of it, during the first term of office ; neither 
 was there any one to receive it, the children being minors during the 
 whole of that term. 
 
 Although I think Carter's acts in relation to the children's property 
 were in the line of his duty, as Commissioner, and that Evans succeeding 
 him in office, succeeded to his duties ; yet there is no default proved in 
 his first term, and his sureties for that term are not responsible for 
 this claim. 
 
 9 The claim of the Commissioners of the Poor on account of John 
 Craven. 
 
 The proceedings relating to this matter are very extraordinary. 
 
 Craven, a lunatic, had been, from 1812 to 1818, under the care of the 
 Commissioners of the Poor. In 1818, he obtained (without the inter- 
 vention of a committee, as it would appear,) a decree in this Court ; 
 under which the Commissioner of the Court, who preceded Evans, sold a 
 tract of land, for his benefit, at $1120 dollars. The Commissioner sup- 
 ported him on the avails until Evans' election. Then Evans took charge 
 of the lunatic and the fund, and supported him on the latter until his 
 death ; which happened in , during Evans' first term. 
 
 After the lunatic's death, and during his own first term of office, Evans 
 reported to the Court, that the funds left, belonging to the lunatic, were, 
 in cash, $176 06, and in bonds, besides interest, $273. 
 
 He also reported that the Commissioners of the Poor had a demand 
 for $573 33, to the payment of which he recommended that the fund, 
 after deducting the costs of Craven's suit, should be applied, so far as it 
 would go. This was ordered, although there does not appear to have 
 been any administration to Craven taken out. 
 
 The costs of Craven's suit left but $131 of the fund for the Commis- 
 sioners of the Poor, from which it would seem that Craven's capital was 
 very much trenched upon. 
 
 The Commissioners of the Poor now demand the $131 from Evans' 
 Vol. I.— 19
 
 290 SOUTH CAROLINA EQUITY REPORTS. [*425 
 
 -. first sureties, witliout ever having demanded *the money the first 
 -I term of office. No default was committed during the first term, 
 and the sureties for it are not responsible. 
 
 There is no ground, as respects the assignment, or as against the 
 sureties, for the bill in this case ; and it must be dismissed as against all 
 the defendants, but Evans. As against him it will be retained until 
 further order. 
 
 The plaintiflfs move to reverse this decree, and that the relief prayed 
 by the bill be granted ; upon the following grounds : 
 
 1. Because the sureties in the first Ijond are liable for all moneys 
 received by the Commissioner during that terra, unless they show that 
 the same were paid over to his successor. 
 
 2. Because the fact that Evans was his own successor, does not dis- 
 charge the sureties to the first bond, unl'^ss by some schedule signed by 
 the Commissioner at the expiration of his first term, and filed in his 
 office, he had acknowledged the amount then in his hands and ready to 
 be paid over ; and by a receipt endorsed thereon, when he was re-elected, 
 bad admitted his receipt of those sums under his second terra. 
 
 3. Because the receipt of raoney during the first term, charges the 
 sureties ; and the fact, that when called upon he is not able to pay, is 
 conclusive evidence of default during that term, until the contrary is 
 made to appear. 
 
 4. Because an order to pay over, fixes the default during the first 
 term, though no demand was proved to have been made, 
 
 5. Because the failure to invest money ordered to be invested, consti- 
 tuted an immediate default, 
 
 6. Because, where bonds were lodged in the Commissioner's han-ds 
 during his first terra, his first sureties are liable, unless they produce the 
 bonds or the raoney. 
 
 7- Because the Court refused testimony which was offered to prove a 
 default during the first term, by showing that Evans converted the funds 
 in his hands to his own use, during his first term, and because the same 
 evidence was ottered to assail the assignment. 
 *49-l ^- *i>ecause ihe assignment made in trust for the sureties ought 
 
 ■^ -' to be set aside, 
 
 Wm. F. De SausHKre, in support of these grounds, argued, 1st, That 
 the sureties to the first bond were liable for all moneys received by the 
 Commissioner, during that term ; that it was the receipt of the moneys, 
 and not the neglect or refusal to pay over, which fixed the liability of the 
 sureties ; and where there has been a demand made and a refusal to pay 
 over, the default will have relation back to the time when the money was 
 received. At all events, the refusal of the Commissioner to pay out 
 money according to the order of the Court, was evidence of a conversion 
 during that terra, and his neglect to invest funds ordered to be invested, 
 was a default in the first term, and were violations of the orders of the 
 Court prescribing these duties, which constituted breaches of the condi- 
 tion of his bond, for which his securities of that terra were liable. 2. That 
 the assignment was void, as well from its terras, which were intended to 
 coerce creditors to a compromise, as on grounds of public policy. That 
 the community have the riglit to look as well to the private fortune of a
 
 *427] 
 
 COLUMBIA, JANUARY, 1834. O9I 
 
 public officer, as a security for liis official conduct, as to his bond. And 
 he cited and relied on, the American Jurist, No. 10, p. 2S4; 10 Johns 
 Rep. 459; 20 Johns. Rep. 442; 4 Dallas; 5 Johns. Ch. Rep 329 
 332. 
 
 BJanding, contra. As to the question, whether the securities to the 
 first bond were liable — argued, that the breach assigned was that Evans 
 had received money which he had not paid over according to the condi- 
 tion of his l)ond ; and that there could be no such breach when the 
 creditors stood by, and did not set up their claims until the second term. 
 As to the funds in his hands during the first term, which were ordered to 
 be paid over, no cause of action accrued until after demand; Hamilton 
 V. Wright, 2 Bailey, 51 ; and State v. Martin, Columbia, May Term, 
 1830. And as regards the order to invest funds, a failure to comply 
 with it could only make the sureties to the first bond liable for the 
 interest. Evans was his own successor, and the fund remaining in his 
 hands until* the second term, his sureties to that term are liable, r^ic^o^ 
 As regards the assignment, he insisted that there was no ground L 
 on which it could be impeached. It was executed bona fide for the 
 benefit of his creditors, of whom were his sureties ; and he had a perfect 
 legal and equitable right to give preferences among his creditors, and 
 indeed he might have paid in $10,000, and discharged his bond. There 
 is nothing in the terms of the assignment to prewnt creditors from pro- 
 ceeding against him, or to compel them to compromise their claims ; 
 and, finally, if the assignment should be set aside, the securities are 
 protected by the judgment confessed to them. 
 
 Hakper, J. It will be necessary to add very little to the very satis- 
 factory reasoning of the Chancellor, on the several points involved in the 
 case. The four first grounds of the motion, together with the sixth, 
 maybe considered together. If it were shown that the Commissioner 
 had wasted or converted to his own use the funds officially in his hands, 
 as by purciiasing property with a bond taken by him as Commissioner, 
 during his first term of office, I should think the sureties of that term 
 ought to be answerable. But in the absence of any testimony on the 
 subject, the presumption is, that he retained the funds, and that they 
 were in liis hands as his own successor. Such seems to be the natural 
 inference, and I think it is sustained by the authority of the cases to 
 which the Chancellor refers. Such was the opinion of the presiding 
 judge in the case of the State v. Martin, (a) and it is supported* r^^oQ 
 in some degree by the case of The Treasurers v. Taylor, 2 Bailey, 
 
 (a) Tbe State v. Martin, Commissioner and sureties— Before Mr. O'Neall, at 
 York, Spring Term, 1830. This was an action on the official bond of the Commi.<- 
 sionei' in Equity for bis second term of office, to recover money received by him 
 and not paid over. The jury found a special verdict, which stated among; other 
 things, that a part of the money for which the action was brought was received by 
 the Commissioner during his first term, but was not ordered to be paid over until 
 during the .^econd term; and one of the questions made, was whether the suieties t) 
 the second bond were liable for the money received during the first term. The 
 presiding Judge awarded judgment for the plaintiff; and an appeal being taken, -n 
 his report of the case, on this point he remarks: "Let it be admitted that he re- 
 ceived the whole of the money during his former term and that he received part of
 
 292 SOUTH CAROLINA EQUITY REPORTS. [*429 
 
 524. What other conclusion could you draw ? By what data could you 
 fix a default during the first term of ofBce ? And what is the evidence 
 here of default during the first term ? The strongest cases are those in 
 which the Commissioner was ordered to pay over the funds. These 
 orders were an authority to pay over the money, and made it his duty to 
 do so, if it were demanded. Certainly, however, it did not impose on 
 him the duty of seeking out the parties wherever they might be found, 
 and making a tender. According to the case of Wright v. Hamilton, 2 
 Bailey, 51, there was no default and no cause of action against Evans, 
 till the money was demanded and he refused to pay it, and no demand 
 was shown during the first term. Besides, as observed in argument, by 
 their delay to make any demand of the sureties of the first term, and by 
 establishing their demands against the sureties of the second term, the 
 creditors have concluded themselves. Tf Evans had the funds in his 
 hands during his second terra of office, if he did pay over to himself as 
 his own successor, the sureties of the second term were liable, and if they 
 were Habile, those of the first terra could not be. 
 
 The fifth ground of appeal is, because the failure to invest money 
 ordered to be invested, constituted an immediate default. I suppose it 
 was so ; yet it does not follow that, for that the Commissioner was liable 
 to the extent of the money ordered to be invested. He might be liable 
 to the parties for the interest which v/ould have been made if the fund 
 ^ .„„-, had been properly invested ; but no such claim is made in *this 
 -I case. If he neglected to invest, the money remained in his hands, 
 and the same presumption arises with respect to that, as to any other 
 money in his hands. 
 
 The seventh ground has been abandoned since the hearing ; the 
 counsel having become satisfied that the testimony which was offered 
 could not have been given. 
 
 On the eighth ground, it is not necessary to add anything to the reason- 
 ing of the Chancellor. The assignment was only impugned in argument, 
 by supposing that it was intended to coerce creditors by requiring them 
 to release part of their demand, before they could have the benefit of it. 
 But this was plainly a misconception. The assignment is for the benefit 
 of creditors who shall consent to accept (not accept and release) within 
 a year ; and this was proper, that the trustee might know for what 
 creditors he was to provide. 
 
 Pe7^ Johnson and O'Neall, Js. We concur generally in the views 
 expressed in this opinion, but we are of opinion that the neglect of the 
 
 it in his own debt, what would be the effect of it? Upon his entering on his second 
 term, he had so much money belonging to the comphiinants in the case in Equity. 
 He was ordered to pay it out in his second term, and for his failing to do so, his 
 securities to his second bond would appear to be answerable for a breach of duty. 
 See M'Dowell v. Caldwell, 12 M'C Ch. 43 ; Hall v. Hall, lb. 269. During, however, 
 his second term, on the oOth May, 1826, the Commissioner accounted with the 
 executors and legatees of Feemster (for whose benefit this suit is brought) and 
 admitted the balance of $329 48, to be then in his hands as Commissioner, for their 
 use and benefit. This admission is conclusive on the defendants, and they are 
 bound for the amount thus admitted to be in his hands, with interest thereon." The 
 judgment of the Circuit Court was affirmed, but the case was decided on other 
 grounds. R.
 
 *430] COLUMBIA, JANUARY, 1834. 293 
 
 Commissioner to pay over or invest money as ordered by the Court, was 
 a breach of the condition of the bond, and that the application for sucli 
 an order ought to be regarded as prima facie evidence of a demand ; and 
 that the sureties to the bond of the term in which such order was made 
 are liable : and the decree of the Circuit Court is ordered to be accord- 
 ingly so modified. In other respects, it is affirmed. 
 
 Charles Jugnot vs. Benjamin Hale, and others. 
 
 By the Act of 1825, p. 19, an injunction granted by the Commissioner 
 continues in force no longer than the coming in of the answer ; after 
 which the Chancellor may in his discretion grant a new injunction, or 
 make such other " order on the bill and answer as the case may require ;" 
 and this Court will not attempt to control him in the exercise of this dis- 
 cretion, but upon a plain case of obvious error or mistake. 
 
 ♦Sinclair and Kiddle, Assignees, vs. A. B. Moore and Chas. r*ioi 
 Moore, Administrators of Thos. Price, deceased, ^ 
 
 The Court of Appeals in Chancery has the right to order an issue at law, and it has 
 exercised this right ever since its organization. [*440] 
 
 The Court ordering the issue, has the power of deciding on a motion for a new trial ; 
 but unless the decision upon the verdict in issue involve a reversal of some 
 previous decree in the case, the Chancellor on the Circuit should hear and deter- 
 mine a motion for a new trial of an issue ordered by the Appeal Court. [*44l2] 
 
 According to the practice of this Court, if a party except to the Commissioner's 
 Report, and some of his exceptions are sustained and some overruled, and the 
 case is sent back by the Chancellor to the Commissioner, he may at once appeal 
 to this Court, or wait until there is a final decree of confirmation, and then bring 
 up the whole case. [*444] 
 
 Spartanburgh. The bill in this case wa^s filed by the assignees of 
 George Keenan, against the defendants, as administrators of Thomas 
 Price, for an account of Keenan's estate, — charging that Price and Kee- 
 nan, having been concerned together in trade for many years, Price, 
 before and at the time of his death, had in his possession funds and mer- 
 chandise of Keenan's, not accounted for ; and that they had colluded for 
 the purpose of defrauding Keenan's creditors. The administrators set 
 up, by way of discount to the plaintiff's demand, a bond and mortgage 
 from Keenan to Price, for $6442 ; in reply to which the assignees pro- 
 duced a receipt against, or defeasance of the bond, and conteiided that 
 the bond and mortgage were merely colorable, without consideration, 
 and intended to screen Keenan's property from his creditors; but this 
 instrument, the defendants insisted, was not genuine. 
 
 On the case coming up before Chancellor Thompson, he ordered an 
 issue at law, to try whether the alleged defeasance was genuine, and of 
 full force at Price's death. The jury found for the defendants on this
 
 294 SOUTH CAROLINA EQUITY REPORTS. [*431 
 
 issue ; but tlie Court of Appeals at December Term, 1830, granted a new 
 trial, and at the same time enlarged the order for the issue, so as to em- 
 brace the question, whether the bond and mortgage were for a valuable 
 consideration. The issue was tried before Mr. Justice O'Neall, at Fall 
 Term, 1832, and the jury found that "the bond and mortgage are not 
 colorable, but on valuable consideration, and that the signature 'Thomas 
 Price' to the paper called a defeasance, is not the handwriting of the said 
 Thomas Price." 
 
 The Commissioner, meanwhile, had made up his report on the accounts. 
 It was excepted to by both parties, and their exceptions argued before 
 Chancellor De Saussure, at June Term, 1830, from whose decree thereon 
 both parties appealed, and this Court reformed the decree, and settled 
 *iqc)-i the principles involved in the points then made. After the *last 
 -• trial of the issue, the Commissioner reformed his report according 
 to Chancellor De Sanssure's decree, and the decision of the Appeal Court, 
 and allowed the defendants credit for the amount of the bond. 
 
 The case came before Chancellor Johnston, at June Term, 1833, on 
 exceptions to the Commissioner's Report, by both parties, and on a 
 motion by the plaintiffs for a new trial of the issue, on several grounds. 
 
 Johnston, Chancellor. The verdict rendered to me is not 0]ien to 
 my examination, being grounded on an issue ordered by another Court. 
 That Court, if it had authority to order the issue, (having ordered it for 
 the satisfaction of its own conscience, and not for that of this Court,) is 
 alone competent to decide whether the verdict is sufficient to remove the 
 scruples which occasioned the order. 
 
 If it was competent for me to examine the verdict, I am free to say 
 that it is as satisfactory as any verdict could be, rendered by a jury 
 having before them only part of the materials which, from the nature of 
 the case, bore as evidence upon the point at issue. 
 
 The Court of Appeals, in conceding that the existence or want of con- 
 sideration for the bond and mortgage of the 3d of May, 1819, might 
 influence the opinion of the jury upon the question, whether the account- 
 able receipt of the same date, called a defeasance, Avas signed by Price, 
 admits in substance, that the consideration of that bond and that mort- 
 gage is matter of evidence on the question last mentioned. Tlius, if the 
 direct evidence as to the subscription to the receipt, was equally balanced, 
 and under these circumstances it was proved that the boncl and mortgage 
 were upon full consideration, it would be difficult to believe the receipt 
 was genuine ; since that would inqily that Price had signed a paper 
 giving away upwards of six thousand dollars of his own money. But if, 
 under the same circumstances, it was established that the bond and mort- 
 gage stood u]ion no consideration, the mind would conclude it more 
 probable that Price, losing nothing I)y it, might have signed the receipt. 
 The evidence, therefore, touching the bond and mortgage, was circum- 
 *4331 ^t^"^'^' testimony as to the genuineness of the *receipt for them. 
 -^ If, therefore, there ever was any propriety in sending the latter 
 point to a jury, the evidence respecting the consideration of the bond and 
 mortgage ought then to have been received ; whereby the parties would 
 have saved the expense and delay of a second trial.
 
 *433] COLUMBIA, JANUARY, 1834. 295 
 
 But I do not believe a jury could have ever inquired profitably into 
 the consideration of the bond and mortgage. How could they have 
 ascertained the consideration of them, without examining the accounts 
 from beginning to end? Bat this, a Court of law, from its structure, 
 could not well do : and hence a Court of law is never required or per- 
 mitted to examine matters of account, except when they spring up col- 
 laterally to a matter of which that Court has original jurisdiction ; and 
 then, only from the necessity of the case. 
 
 Now, the accounts here were never left to the jury, but were all disposett 
 of and sent back to the Commissioner in the same decision which ordered 
 the issue on the accountable receipt : nor did the commissioner make up 
 the accounts under the appeal decree, until after the jury rendered their 
 verdict. 
 
 But, inasmuch as the accounts, as made up, upon principles which have 
 been settled both here and in the Court of Appeals, from the best exami- 
 nation I have been able to give them, show a probability that the bond 
 and mortgage were executed upon consideration, I should, if the verdict 
 were returnable to this Court, agree with it. I should say that the bond 
 and mortgage were valid ; and that the accountable receipt for them was 
 a forgery ; indeed, as to the latter, I think there is greatly preponderating 
 evidence of the forgery, independently of the consideration upon which 
 the former stands — so ])reponderating that I should have decided without 
 subjecting the parties to the expense and delay of an issue at all ; in 
 which decision, to be sure, I should not have neglected the light winch 
 the accounts and the bond and m^ortgage would have afforded me. 
 
 Being convinced that so far from being bound, I am not at liberty to 
 take cognizance of the verdict rendered upon the issue ordered l)y the 
 Court of Appeals, while on the *other hand, I am bound to r-jj^Aot 
 decide on the accounts as made up by the Commissioner, that •- 
 part of the case having been recommitted to this Court, with directions 
 pointing out the errors to be avoided ; I cannot express my embarrass- 
 ment ; for it is necessary to a full decision on the accounts that the 
 matters of the bond, mortgage, and accountable receipt, be taken into 
 consideration ; yet they constitute equities reserved in the Court of 
 Appeals. I felt very much the same difficulty as in Fraser and Vaux, 
 (Charleston, 1833,) where the equities were not remitted by the Court of 
 Appeals, but held in their own hands for decision, while, to satisfy them- 
 selves, they ordered certain inquiries by the Commissioner. In that case, 
 I could not decide on his report when it came in. 
 
 In this condition, what am I to do ? The order for the issue is not 
 one of this Court, so that if I were satisfied the jury were wrong, I could 
 not supersede it, either for the purpose of deciding for myself on evidence, 
 or for the purpose of ordering another trial, either on the same terms or 
 others. I do not know what the doubts of the Court of ^Appeals were 
 founded on, so as to say whether the verdict would or ought to resOive 
 them. 
 
 On the whole, after much reflection, being determined not to embar- 
 rass the case or delay the parties, if any thing I can do can avoid it, I 
 have come to the conehisiou, inasmuch as I think, on the evidence and 
 accounts independently of the verdict, that the bond and mortgage are 
 founded on a consideration, and that the receipt is a forgery; that my
 
 296 SOUTH CAROLINA EQUITY REPORTS. [*434 
 
 best course is to sustain the former and reject the latter, in deciding upon 
 the Commissioner's Report. This is but an affirmation of the former 
 Circuit decree. If the Court of Appeals should, on considering the 
 verdict, come to the same conclusion, the case will have been forwarded : 
 if not, they can correct the report. 
 
 Will the difficulty in which I have found myself authorize me to state, 
 with deference, very briefly and imperfectly, why I think the Court of 
 Appeals cannot order an issue in an Equity case ? (Wilks' case, Columbia 
 Appeals, 1831.) If it be not presumptuous, I would venture to do so. 
 
 An issue, such as this, is intended to ascertain a fact. 
 
 -. *It belongs to an ai)pellate jurisdiction, supervising a law deci- 
 -J sion, to correct, by the Appeal decision, errors of law ; but, as to 
 errors of fact, the only correction it can make, is to remit the case to the 
 original tribunal for another trial. 
 
 The appellate power, as respects an Equity case, extends to the cor- 
 rection by the Appeal decision, of errors of fact as well as those of law. 
 11 John. Rep. 406 ; Rolle Abr. 805 ; Bac. Abr. tit. Error, M. § 2. 
 
 In remitting a law case upon matter of fact, the appellate Court cannot 
 remit one or two points only; it must remit the whole case, and put the 
 Court below in possession of it, so far as the facts are concerned, in as 
 full and ample a manner as it had at the first trial. Why ? Because the 
 people, by the Legislature, have committed to the Court below, as con- 
 stituted by them, the decision of the facts ; and have only allowed the 
 decision to be supervised, by way of appeal. Under the guise of 
 supervision, the Court of Appeals cannot send the facts to a tribunal 
 more satisfactory to themselves. It belongs to the Legislature, under 
 the Constitution, and not to the Court of Appeals, to parcel out the 
 judicial power. Const, of S. C, Art. 11, Sec. 1. 
 
 With regard to Equity cases, there is no difference, as respects the 
 power of the appellate jurisdiction to correct errors of law. Neither, 
 speaking for myself, do I question its power to correct errors of fact ; 
 although the Appeal opinion, in this very case, speaking of the credit 
 given by the Chancellor and Commissioner to pa))er evidence, says, 
 " both of them having concurred in giving full credit, this Court has 
 neither the inclination nor the j^ower to question the correctness of their 
 conclusion." 
 
 But, when an Equity decision on a matter of fact comes up, the cor- 
 rectness of which is doubted in the Court above, what has it power 
 to do ? 
 
 Although the members of the appellate Court may think the evidence 
 so doubtful, that if they had been sitting on the Circuit in the Court of 
 original jurisdiction, they would have ordered an issue ; yet, can they say, 
 under the Acts constituting the Couit of Equity, it was error of law in 
 the Circuit Court not to have ordered one ? This Court is consti- 
 tuted by Act.XTrott. No. 460; A. A. 1721, sec. 10,) with a direction to 
 " proceed, adjudge, and determine, in all causes brought into the said 
 * iog-] Court, as near *as may be, according to the known laws, customs, 
 -■ statutes and usages of the kingdom of Great Britain ; and also, 
 as near as may be, according to the known and established rules of his 
 Majesty's High Court of Chancery, in South Britain" — and again it was 
 declared by act, (P. L. 337-9 ; A. A. 1784, sec. 5J that "this Court
 
 *436] 
 
 COLUMBIA, JANUARY, IS 34. 097 
 
 shall have full power and authority to establish such standing rules and 
 orders (not repugnant to that Act) for regulating the practice of the said 
 Court, as they shall deem most consistent with justice and equity, and as 
 may effectually tend to the dispatch of business without unnecessary 
 delay to suitors." By the Act of 1808, (vide 1 Faust, 29, 34 ; A. A. 
 1808, sec. 4,) the Judges of the Court of Equity were directed to convene 
 at stated periods, " to try all appeals that may be brought up from the 
 Circuits." 
 
 The Act of 1824, (A. A 1824, p 17, sec. 1,) constituting a separate 
 Court of Appeals, gives it " appellate jurisdiction in all cases brought 
 up from the Circuit Courts, both of Law and Equity, in the same man- 
 ner, and with the same powers and authority, in all respects whatsoever, 
 as are now exercised by law, by the Constitutional Court, and the Court 
 of Appeals, [in Equity,] or by either of them separately." 
 
 With regard to the Constitutional Court, it can hardly be necessary to 
 remark, that its appellate power related solely to cases carried from the 
 Law Circuits, and consisted under the Constitution, (State Const., Art. 10, 
 sec. 3,) merely "in hearing and determining all motions for new trials, 
 and in arrest of judgments, and such points of law as should be submitted 
 to them," at the end of each law circuit. 
 
 In this manner has the Legislature parceled out the Judicial power, 
 so far as this Court and the Court of Appeals are concerned : which 
 partition has the sanction of the Constitution, (Art. 3, sec. 1,) which 
 declares that " the judicial power shall be vested in such superior and 
 inferior Courts of Law and Equity, as the Legislature shall from time to 
 time direct and establish." 
 
 Xow, can the Court of Appeals, as an appellate Court, pronounce it 
 error of law, in any case, in a Chancellor, not to have directed an issue 
 on a matter of fact ? The Legislature has given him the decision of 
 facts, with no other qualification than that, if he feels himself at a loss 
 *upon the evidence, he may, after the pattern of the English r^.oir 
 Court, ask the aid of a jury. ^ 
 
 If he orders an issue, the question involved in it is still with him ; and 
 he may supercede his order, if his doubts vanish, or if the parties, depend- 
 ing on the fact that the Court of law cannot nonsuit the action for want 
 of diligence, are guilty of gross delay ; or he may differ from the verdict, 
 upon its return to him, (17 Johns. R. 267 ;) or he may order a second trial, 
 if his judgment is not satisfied by the first. All this is "according to 
 the known and established usages in chancery in South Britain." Is it 
 error to pursue it when the Legislature directs ? 
 
 It is not error, before an appellate Court, that the Circuit Court having 
 authority to do it has refused a new trial, (4 Wheat. 220,) can it then, on 
 principle, be error, that the Court of Equity has not asked the aid of a 
 jury ? . 1 • 1 
 
 The Court of Appeals occupies the same relation to this Court which 
 the House of Lords does to the Court of Chancery in England. I have 
 searched diligently, but in vain, for a single instance in which that house 
 has either ordered an issue, or held it error that the Chancellor failed to 
 order one. 
 
 The Legislature has given this Court the decision of facts, and this it 
 holds under the Constitution. Can it be taken from it by another Court
 
 298 SOUTH CAROLINA EQUITY REPORTS. [*437 
 
 without a violation of that instrument ? The Legislature has intrusted 
 this to its capacity and judgment : wlio is authorized, but the Legislature, 
 to say that the functionaries thus intrusted are not capable? Others 
 intrusted with the supervision of their errors, mnj correct them, if it be 
 ajiparent they have committed any ; but it can never be allowed that, 
 because they doubt whether error has or has not been committed, they 
 should cashier them for incapacity, and transfer their trust to others ; 
 thus in reality constituting those whom the Legislature has appointed 
 judicial officers, mere commissioners to take testimony, the original power 
 of decision being in reality in the Court above, wlio aid themselves in 
 exercising it by calling on a foreign tribunal. 
 
 If the Legislature had thought a jury indispensable to the decision of 
 facts, they would have annexed one to this Court. I value the judgment 
 ^ , -, of a jury so much myself, that, with deference* to the better opinion 
 -I of the Legislature, I wish this Court had the power of impanneling 
 one on suitable occasions. I would frequently consult them, but for the 
 delay and expense attending the orders of issues. It puts back parties at 
 least a year, and the expenses are very great. 
 
 But to return, it may be asked if an appellate Court cannot order an 
 issue, when it may doubt whether the Court below has decided correctly 
 on a fact ? What is it to do ? 
 
 What is a Court of Appeals intended for ? Is it intended for any 
 other purpose than to correct errors ? Then if it is not able to say that 
 error exists in the circuit decision, it is not at liberty to disturb that 
 decision, but must let it stand. (2 McO. Ch. R. 15, 59, 71, 73, 74, 95, 
 194-5.) 
 
 What authority has the Court of Appeals over a verdict at law ? Can 
 it set it aside unless it is against evidence ? If the evidence leaves the fact 
 doubtful, in the minds of the Appeal Judges, is it not their constant habit 
 to say that tlie jury, the authority established to decide facts at law, 
 having decided, they are not at liberty to set their verdict aside? Yer- 
 dicts cannot be set aside but for manifest error. 
 
 The Court of Appeals has put the decisions in equity upon the same 
 footing with verdicts at law. (2 McC. R. 71, 73, 74, 75 ) The late Judge 
 Nott, in a case in which he delivered the opinion of the Court of Appeals, 
 speaking of a matter of fact, said, "that was properly for the consideration 
 of the Chancellor, and this Court will not interfere unless the decree were 
 manifestly contrary to the weight of evidence, The decree of the Chan- 
 cellor must in that respect be considered in the nature of a verdict at 
 law." (2 McC. Ch.R. 71.) Mr. Justice Johnson, in delivering the opinion 
 of the same Court in another case, says, "the Court takes this occasion 
 'to lay down a few rules' which have become the more necessary under 
 the recent modification nnd jyrexnnt organization of this Court." (2 McC. 
 Ch. R. 73-4-5, 1827.) He then speaks of "unmixed questions of fact." 
 He acknowledges that the Court of Appeals is not so competent as the 
 Circuit Court, which hears the evidence, to decide such questions. I may 
 be allowed to observe by the way, that if they are not so competent, 
 merely because they do not see the witnesses, their merely doubting is no 
 reason either of reversing a decree or ordering an issue to relieve their 
 *439T f^*^"^'^'^' since it might be that if they heard the evidence, as *the 
 ^ Chancellor does, they might, like him, have no doubts. The Judge
 
 *439J COLUMBIA, JANUARY, 1834. 299 
 
 goes on and says, "where there is evidence on both sides, this Court will 
 not weigh it, for that belongs to the jury ; and their view of it is conclu- 
 sive. And so, unless it appears that they have acted under a mistake, or 
 have been so palpably influenced by some improper motive, that the 
 erroneousness of their conclusion is such as to strike the understanding 
 wMth conviction at once, this Court will not set their verdict aside. Now, 
 all the reasoning upon which these rules are founded" (he continues) 
 " applies with equal, indeed with greater force, to a case coming up under 
 a report from the Commissioner, through the medium of the Chancellor, 
 because we are removed one stage farther from the original source — and 
 this Court feels warranted in adopting these rules for its future govern- 
 ment." 
 
 These remarks spring from a true conception of the nature and duties 
 of appellate jurisdiction. It was never intended to provide for two full 
 trials in every case. It was never intended that as a prerequisite to a 
 decision, there should be found two tril)unals equally concurring in it ; it 
 was not intended to set up judicial machinery so calculated, as that would 
 make it, to wear out the citizen by delay and impoverish him Iiy expense. 
 It was not intended that the circuit decision should be void and go for no 
 decision unless affirmed by another Court, but that it should be a valid 
 judgment unless disaffirmed ; therefore, the Court undertaking to set it 
 aside, must see that there is error, not merely doul)t whether there mny 
 or may not be error ; it was intended to terminate litigation as speedily 
 as it could be done, by a decision of which none could say it was erroneous. 
 It may be said of a large portion of controversies, that if they should be 
 subjected to live hundred trials, doubts could not be removed, or a certainty 
 of justice obtained ; but society must adjust controversies ; and as soon 
 as it can do so without injustice and error, it is its duty to do it. 
 
 Now, under the rules laid down by the Court of Appeals itself, for its 
 government, (and as an appclhite tribunal it could lay down no other) 
 that Court must acquiesce in every circuit decision in equity, containing 
 no error of law'and no manifest error in fact. 
 
 *If there be manifest error in fact, if such circuit decree be mani- r^); < < a 
 festly against evidence, it must reverse the decree. If the error •- 
 be not palpal)le, the decree by their own rule must stand. 
 
 But even if that Court were at liberty to withhold its confirmation 
 from a circuit decree because they doubted on it ; (which, by the way, is 
 a misconception, circuit decrees not requiring confirmation in order to 
 their validity) but even in that case, it does appear to me that by analogy 
 to what is done in new trials ordered at law, the Appeal Court is bound 
 to remit the ease to the Circuit Court for new trial, exactly upon the 
 same terms as it stood at the first trial. 
 
 I trust I have not transgressed in the observations I have ventured. 
 It was not my intention to do so. I have studied to avoid language 
 calculated to throw any reflection upon the enlightened triburial of whose 
 powers I have been speaking; and if any such has crci)t into what I have 
 said, it was against my will. All I intended was to protect the tributuU 
 to which the Legislature has a]ipointed me, from violation ; to preserve it 
 in the same condition in which it was by the Legislature, under the Con- 
 stitution, delivered to me. 
 
 His Honor then took up the Commissioner's report and considered the
 
 300 SOUTH CAROLINA EQUITY REPORTS. [*440 
 
 exceptions thereto, but refused to allow any exceptions to such parts of 
 this report as were not excepted to in the former report, and to consider 
 any exception which had been put into the former report, unless supported 
 bv the former decree. After having overruled the exception and confirmed 
 the report, there appearing a large balance in favor of the defendants, 
 the Chancellor dismissed the bill. 
 
 From this decree the plaintiffs appealed, on the ground of error in the 
 Chancellor's decision, in refusing the motion for a new trial and in over- 
 ruling the exceptions. 
 
 A. W. Thompson, for the appellant. 
 
 Farrow and WilUams, contra. 
 
 O'Xeall. J. The Chancellor has, at great length, and with much 
 learning, discussed and denied to this Court the power of ordering an 
 issue. Until he agitated the question, we did not suppose there was a 
 doubt entertained upon the subject by any member of the Bar in South 
 *j.j.i1 Carolina. The *practice can in our own reports be traced back 
 -I to a period within five years of the origin of the Court of Ap- 
 peals in Equity. Taylor and wife v. Mayrant, et al. 4 Eq. Rep. 313 
 From that time to the present, it has been constantly used by the former 
 Court of Appeals in Equity and the present Court. 
 
 "Without pretending to argue the question on the precedents from 
 England or Xew York, it will surely be enough to satisfy the Chancellor, 
 to remind him that a Court of Appeals in Equity, organized as ours, is 
 unknown to the jurisprudence of the countries from which he has drawn 
 so largely. 
 
 The Act of 1808, after providing for the establishment of a Court of 
 Appeals in Equity, and for the arrangement of two semi-annual Courts, 
 at Charleston and Columbia, provides, "and it shall be the duty of all of 
 the Judges of the Courts of Equity to attend at the said Courts of Appeal, 
 and to hear and try all Appeah that may be brought up from the Cir- 
 cuits hereby annexed to the said Courts respectively." The succeeding 
 section directs the manner in which any person may appeal from " any 
 order or decree of any Judge pre.iiding on the Circuit." These pro- 
 visions do not merely create a Court of Errors for the revision of decrees 
 in Chancery : but they create an appellate tribunal "to hear and try all 
 Appjeals,'^ whether of law or fact. The Court thus constituted became 
 pro hac vice the Chancellor, and in his place exercising his power of 
 hearing and trying, must render the appropriate judgment which he 
 ought, but has perhaps failed to give. To enable the Court of Appeals 
 to do this, it must have all the Chancellor's powers, among which is his 
 discretionary power of ordering an issue to inform his con.science on a 
 doubtful question of fact. This is as necessary to three judges as it can 
 be to one. For they may have con:<fiences desiring information as well 
 as he. I presume no one of the five judges who originally constituted the 
 Court of Appeals in Equity ever doubted, that as a Court of Appeals col- 
 lectively, they had in cases of appeal all the powers which individually on 
 the Circuit they could exercise. If any did, why did they unanimonsly order 
 *4421 ^" ^'"^^^ *'" Taylor vs. Mayrant ? If the former Court of Appeals 
 "-' in Equity had the power, this Court unquestionably has the same. 
 For the Act of 'l824 abolished the Court of Appeals in Equity and the
 
 'U'2] 
 
 COLUMBIA, JANUARY, 1834. 301 
 
 constitutional Coart, and created this Court in their stead, giving it all 
 the powers which belonged to either. It is true we are reluctant to 
 decide upon questions of fact : we generally prefer to follow and adopt the 
 Chancellor's decision. In expressing our concurrence on questions of 
 fact in which the Commissioner and Chancellor have united in judirment 
 we have used the loose expressions "this Court has neither the incli^iatiou 
 nov the poicer to question the correctness of their conclusion." But in usiu"- 
 such expressions it was not intended to disclaim the power of examinint' 
 a Chancellor's decision upon facts in every case ; but merely to say in 
 the particular case, that according to previous decisions we could not 
 interfere with that decision. I am sure, after the short experience I have 
 had on this Bench, that I can safely say we have no wish to increase our 
 jurisdiction, or to trench in any way upon the JeaJousJy gnar'led juri^- 
 diction of Chancery. But it is our duty, as well as that of every other 
 Judge, to "judge righteously between every man and his brother and 
 the stranger that is with him." "We as well as the Chancellor are 
 charged " ye shall not respect persons in judgment, but ye shall hear the 
 small as well as the great ; ye shall not be afraid of the face of man, for 
 the judgment is G^orf'6'." In the exercise of such a duty, appellate as it 
 happens to be in our case, we must be satisfied that the judgment which 
 we are to pronounce is correct. If we do not perceive manifest error in 
 the Chancellor's judgment, upon the facts, we may be justified in resolv- 
 ing our doubts by the arhitrio honi viri: but if we do perceive error, 
 and yet are not satisfied to say that the Chancellor's decision is so mani- 
 festly wrong that we will reverse his decree, we surely have the right to 
 inform our consciences by the verdict of a jury, before we give a final 
 judgment in the place of the Chancellor. 
 
 TTe agree with the Chancellor, that the Court ordering the issue has 
 the power of deciding upon the motion for a new trial of the issue. Tay- 
 lor i-s. Mayrant, 4 Eq. Rep. 515. *But unless, as in the case of r*i io 
 Taylor vs. Mayrant, the decision upon the verdict in the issue L 
 may involve a reversal of some previous decree in the cause, I see no 
 impropriety in the Chancellor hearing and deciding upon a motion for a 
 new trial of an issue ordered by this Court. In some cases such a course 
 may be necessary (as in this) to bring up the whole case to this Court. 
 The Chancellor can have as little difficulty in saying whether the result 
 of the issue would be satisfactory to our consciences as he would have in 
 determining whether the result of an issue ordered by his colleague, 
 would be to him. His conscience would, in each case, be the conscience 
 of the Chancellor seeking information. But it seems to me, in this case, 
 that he ought, according to his own principles, to have decided on the 
 motion. Chancellor Thompson ordered the issue in the first instance — 
 this Court, in the former opinion, enlarged the order, and directed the issue 
 to be made up anew, conforming to this enlargement. This surely was 
 not ordering an issue for our information alone — the doubt originated in 
 the conscience of the Chancellor, he ordered an issue; we thought his 
 object would be better obtained by adding another inquiry. So that, in 
 this point of view, the Chancellor ought'^ to have met, considered, and 
 decided upon the motion for a new trial of the issue. But as his decree, 
 dismissing the bill, is, in effect, a refusal of the motion for a new trial, it
 
 802 SOUTH CAROLINA EQUITY REPORTS. [*443 
 
 will not be necessary to remand the cause to the Circuit for an express 
 adjudication upon that motion. 
 
 [His Honor here went into an examination of the grounds on the 
 motion for a new trial, which having been considered, the motion was 
 refused. As they relate entirely to the facts, and involve no legal prin- 
 ci])les, the remarks on them are omitted ] 
 
 This brings us to consider of the questions arising out of the accounts ; 
 and it is to be regretted that the complainant's counsel had not, on the 
 former occasion, when this case was before us, presented his objections. 
 If this had been done, the case might have gone back, with such instruc- 
 *i4.i1 tions to the Commissioner as would have enabled him to *havepre- 
 -^ sented a report, calculated to do equal justice to the parties. But, as 
 it is, he has been limping on in the dark, with instructions to direct him on 
 a part of the case, but none as to the other parts. That injustice lias 
 been done, under such circumstances, is not to be wondered at ; and that 
 the case must once more go back, almost to its beginning point, is to be 
 regretted, (but it is no great marvel), after a pilgrimage of ten years in 
 Chancery, 
 
 I agree with the complainant's counsel, that he was not bound to 
 appeal to this Court, on any of the points involved in the Commissioner's 
 report, so long as any thing remained to be done by the Commissioner 
 to complete it- for confirmation generally, and until it was confirmed by 
 tlie Chancellor's decree. But although I think he was not, according 
 to the practice of this Court, bound to appeal, yet I think he could have 
 appealed on any point which the Circuit decree finally settled. 
 
 The Chancellor is correct in saying that a report of the Commissioner 
 must I)e regarded as correct, unless the party complaining of it will 
 specify its errors by exceptions. The rule is very well stated, l)y Mr. 
 Justice Spencer, in the case of Wilkes vs. Rogers, 6 John. Rep. 591, in 
 the following terms: "It appears to me, that exceptions partake of the 
 nature of special demurrers ; and if reports are erroneous the party nmst 
 ])ut his finger on the error. When he does so, the parts not excepted to 
 are admitted to be correct, not only as it regards the principles, but as 
 relates to the evidence on which they are founded." If a party does not 
 think proper to except to a report at all, he cannot be heard against its 
 confirmation, on account of any error, either of law or of fact, committed 
 by the Commissioner. Foot u.s. Van Ranst, ante, 128, decided at 
 Charleston, April, sitting, l83o. But under the practice heretofore pur- 
 sued by this Court, if a party excepted to the Commissioner's report, and 
 some of his exceptions were sustained, and some overruled, and the case 
 sent back by the Chancellor to the Commissioner, he might appeal at 
 once, to this Court ; or wait until there was a final decree of confirma- 
 *4451 ^''^"'* ^"^ ^^us bring up the whole case. This is in the language 
 of Judge Nott, in the case of Harrison i-.s. Jenkins, allowing the 
 party the right to appeal as " long as there is a fragment on which he can 
 lay hold." The complainant, as it appears from the Chancellor's decree, ex- 
 cepted to the Commissioner's report, before Chancellor De Saussnre, on 
 all, or nearly all, the points on which he exce[)ted to it before Chancellor 
 Johiiston. It is true, th'at he could not allow the exceptions contrary 
 to his predecessor's decree ; still, however, under the rule of practice 
 which I have stated, the complainant has the right of appeal, and it thus
 
 #445] 
 
 COLUMBIA, JANUARY, 1834. 303 
 
 becomes necessary for us to decide on the merits of tlie various exceptions 
 put in by the complainant, to the Commissioner's report. 
 
 [Having examined the exceptions and sustained some of them, Clmn- 
 celior Johnston's decree was reversed, and tlie case sent bade to the 
 Commissioner, with instructions to restate the accounts.] 
 
 Johnson, J., concurred. 
 
 Joseph Price, Executor of John Turner, and Rebecca Turner, vs. 
 
 Wilson Nesbit. 
 
 By the Act of 1808, a party lias the right to appeal "from any order or decree of 
 any Judge presiding on the Circuit,"' whether it be interlocutory or finul [*t5:!1 
 
 "Where there has been no final judgment in a cause, a party may on appeal examine 
 the whole case, and open for consideration all prior < r interlocutory orders or 
 decrees any way connected with the merits of the decree from which he has 
 appealed; and this too notwithstanding such ordtrs or decrees may have been 
 affirmed by the Appeal Court. [*453] 
 
 A Circuit decree affirmed by the Court of Appeals, if it is a final decree, can never 
 again be examined, either on appeal, by bill or review or on a rehearing; but if 
 it merely establishes a general right of recovery and leaves the extent of tlie 
 recovery to be afterwards ascertained, if it does not end the controversy but still 
 leaves something to be done to enable the Court to pronounce judgment, it is 
 examinable on an appeal from a final deciee. [*457] 
 
 So long as a decree operates merely as authority, or as the reasoning of the Court to 
 prove the party's right in whose favor it is pronounced, it may be reviewed and 
 reversed whenever it comes up properly before the Court of Appeals in any of the 
 subsequent stages of the case. [*459] 
 
 A sale by an administratrix, where the administration was afterwards revoked on a 
 will being admitted to probate, is valid if there be no fi-aud; and tiiat the admin- 
 istratrix was herself the purchaser does not render the sale vnid. It can only be 
 avoided at the instance of the legatees and not of the executor. ["'1(51] 
 
 A decree of the Ordinary at the instance of the parties interested, against the 
 administratrix, which includes the price of the negroes purchased by her, is a 
 confirmation of the sale. [*4lJ--i] 
 
 Spartanburg!). The bill states that John Turner executed his last 
 will and testament on the 9th May, 1818, and shortly afterwards died, 
 leaving it of full force. That the will was jiresenled for probate in 
 July, 1813, but tlie Ordinary refused to admit it to probate, and granted 
 letters of administration on his estate to his widow, Rebecca Turner ; 
 and the defendant, Wilson Nesbit, was the security to her adniinistratiou 
 bond. By virtue of an order from the Ordinary the ^personal r*^^g 
 estate was sold by the administratrix, and at the sale she pur- 
 chased the negroes Job, Reuben, Sarah, Jwhn and Ephraim, but neither 
 inadequacy of })rice nor unfairness in the sale is charged. That on the 
 17th August, 1-818, more than five years after the sale, the will was again 
 presented to the Ordinary and admitted to probate, and the plaintiff, 
 Joseph Price, qualified as an executor. The reason assigned by the bill 
 for the delay in procuring probate is, that some of the witnesses were 
 legatees who refused until that time to prove it, preferring adminis- 
 tration as in a case of intestacy. That by the provisions of the said will, 
 the negro Job was bequeathed to Nathan Turner, (one of testator's sous) 
 and Sarah to his daughter Sarah, during their lives, and at their deaths
 
 304 SOUTH CAROLINA EQUITY REPORTS. [*446 
 
 to be equally divided among the other children, and the residue of his 
 property he devised to his wife for life, and at her death to be equally 
 divided amongst his children named in the will. That Rebecca Turner, 
 previous to the probate, on the 20th November, 181T, being then aged 
 and infirm and insane and incapable of executing a contract, by the per- 
 suasions of her son Matthias Turner, executed a bill of sale to him of the 
 said slaves, on the condition that he would maintain her during her life : 
 that the defendant Nesbit drew tlie contract between them and became 
 bound in a l)ond as the surety of Matthias Turner for her maintenance, 
 and that the bill of sale was fraudulently procured, and the condition of 
 the bond had not been performed. That about a year after the negroes 
 went into the possession of Matthias Turner, he sold them to Nesbit, who 
 had a full knowledge of all these facts, and Matthias Turner having died 
 he is his executor, and retains possession. The bill further states that 
 by a decree of the Ordinary in 1820, against Rebecca Turner, as admin- 
 istratrix of John Turner, there is due to each of the distributees (there 
 being twelve in number) the sum of $239 34, of the sales of the personal 
 estate made under the order of the Ordinary. And it is further stated 
 that Rebecca Turner has executed a bill of sale for the negroes to Joseph 
 Price and Nathan Byers, to enable them to recover them from Nesbit. 
 *4i'7l ^^^ '^'^^ prays that the bill of sale from Rebecca Turner* to 
 -' Matthias Turner, may be declared null and void — and that if the 
 sale by Rebecca Turner, as administratrix, and purchase by herself, 
 should not be declared void, that then the negroes should be delivered 
 up to her — and if that sale should be annulled, that the negroes. Job and 
 Sarah, be delivered to Joseph Price, the executor of John Turner ; and 
 that Nesbit should give security that the other negroes should be forth- 
 coming at the death of Mrs. Turner. That if neither the bill of sale nor 
 the sale by tlie administratrix should be declared void, that the defendant, 
 Nesbit, as the surety to the administration bond, should be decreed to 
 pay Joseph Price, as the executor of John Turner, deceased, the respec- 
 tive shares of each distributee, according to the Ordinary's decree ; and to 
 support Rebecca Turner, during her life. 
 
 The answer of Wilson Nesbit denies the charge of fraud, both as to 
 himself and Matthias Turner, and states that he is a purchaser for a 
 valuable consideration, upwards of seven hundred dollars of which he 
 has paid, and denies the plaintiff's right to recovery. 
 
 The case was first heard by Chancellor James, at June Term, 1822, 
 who refused to hear evidence, and decreed on the case made in the bill 
 and answers against the defendant, Nesbit, for the negroes and their 
 hire, on the grounds : 
 
 1. That the negroes were purchased by the administratrix, at her own 
 sale : 2. Because a sale of the negroes was incompatible with the terms 
 of the will : and, 3. Because Nesbit was a purchaser with notice — and 
 ordered a referen(^ to the Commissioner to ascertain the value of the 
 hire. On appeal, the Court of Appeals in Equity (this being before the 
 organization of the present Court of Appeals) affirmed the decree. On 
 the reference under this decree being held, the Commissioner reported 
 that the personal estate w'as all sold at full value, under the administra- 
 tion of Rebecca Turner, the parties in interest being all of full age and 
 present assenting thereto, and have since received their full shares,
 
 *447] 
 
 COLUMBIA, JANUARY, 1834. 305 
 
 amounting to $227 each — that Rebecca Turner did not purchase more 
 than lier one-third part, and that she subsequently sold the negroes to 
 Matthias Turner, who sold *at a fair price, to the defendant, p. 
 j^fesbit; and that the will was not admitted to probate until 1818, L ■*'+^ 
 when the estate was settled up under the administration. 
 
 The defendant contended before the Commissioner, that as the plaintiff", 
 Joseph Price, and the other children of John Turner, had received their 
 full shares of what the negroes sold for at the sale, and under the admin- 
 istration, they could not again receive the value of the negroes under the 
 will and decree, without refunding — and the Commissioner submitted the 
 question for the decision of the Court; but also reported that the value 
 and hire of the negroes would make the sum of $2,495 85, with interest 
 from the 27th May, 1827. 
 
 The case was argued before his Honor Chancellor De Saussure, at 
 June Term, 1827. He decreed that the complainant Joseph Price, and 
 the other distributees of John Turner, having once received their full 
 shares of the value of the negroes, under the sale made by the adminis- 
 tratrix, they could not receive them again without accounting for the 
 amount first received. He ordered the case back before the Commis- 
 sioner, with instructions to re-investigate the real and moderate value 
 and hire of the slaves in question; and to ascertain the amount actually 
 received by the plaintiffs, out of the sales of that property, made by 
 the administratrix, and to make up the accounts accordingly, and to 
 allow interest on both sides. No appeal was taken from this decree — 
 and no reference or other proceeding was had in the case before the 
 Commissioner. 
 
 At June Term, 1829, the Commissioner reported that from a review of 
 the evidence taken on a former reference it appeared that the fact stated 
 by the then Commissioner in his report — that the legatees of John 
 Turner had received their full shares of his estate, is erroneous — some 
 have received their full shares, others have received a part, and without 
 a further and minute investigation the Commissioner could not report on 
 the state of these accounts, and required a decretal order to govern him 
 in the investigation. These several views were submitted to Chancellor 
 Harper, at June Term, 1829. His Honor decreed, confirming the Com- 
 missioner's report made in 1827, as to the value and hire of the negroes, 
 ^without referring the case back before the Commissioner under r-j-AAQ 
 the decree of Chancellor De Saussure, made at June Term, '- 
 1827 ; from which decree the defendant appealed and moved this Court 
 to reverse all the decrees and decretal orders heretofore made, and to 
 dismiss the bill or send the case back on the grounds : 
 
 1. Because the Court had no jurisdiction of the case, the plaintiff 
 Joseph Price, having complete and adequate remedy at law. 
 
 2. Because the decree exceeds the case made in the bill, and furnishes 
 of itself evidence, that it is based upon erroneous legal principles and 
 statements of facts, and is therefore void. 
 
 3. Because the parties interested were all of full age, and not only 
 conusant but advising to all the actings unde? the administration, and 
 have received their shares of the proceeds of the sale by the administratrix 
 — and if that sale is to be set aside at their instance, they should be com- 
 pelled to refund the amounts received by them under that sale, 
 
 YoL. I.— 20
 
 306 SOUTH CAROLINA EQUITY REPORTS. [*449 
 
 4. Because it is never too late, while a case remains in this Court, and 
 the nriiuutest order is required of the Court, for it to interfere to prevent 
 injustice from its mistakes of law or fcxct, when evidence of such mistakes 
 is furnished by the case itself, as in the present case. 
 
 5. ]3ecause if the decree of the Court of Appeals, affirming Chancellor 
 James's is irreversible — the decree of Chancellor De Saussure in 1827, 
 ordering the heirs of John Turner to refund, not having l)een appealed 
 from, is equally so ; and that the Chancellor, therefore, when the case 
 came up at June Term, 1829, had no authority to decree farther than on 
 the state of the accounts, made under the decree of 182T. 
 
 6. Because as there are no debts due by the estate, any amount recov- 
 ered in this case, will be in trust for those who have already received 
 their shares of the proceeds of the sales of this property, and the decree of 
 Chancellor De Saussure, ordering theoi to account for the sums first 
 received, was correct— the more especially so, as since the original decree 
 *i"nl Rebecca Turner is dead, and those who will *be benefitted by the 
 
 -I decree, (and who sue by their trustee, the executor,) will be entitled 
 to the property — thus receiving their shares twice. 
 
 7. Because the report, as to the hire of the negroes, is excessive, and 
 would have been excepted to, had not the decree of 1827 ordered a refer- 
 ence as to that point, as to which purpose the Chancellor had an unques- 
 tionable right to order a farther reference. 
 
 8. Because the defendant, as to the purchase from Matthias Turner, 
 who purchased from Rebecca Turner, has a right to the shares of Mat- 
 thias and Rebecca Turner, under their warranties, as v/ell as a right to 
 the share of Matthias Turner in the estate of his father, and to his interest 
 in the shares of Nathan and Sally Turuei', (all of whom are dead,) as the 
 executor of Matthias Turner. 
 
 9. Because, whilst one ground of the jurisdiction of this Court is to 
 redress injuries resulting from mistakes of others, it should not refuse to 
 correct its own mistakes. 
 
 Tlie cause was argued before this Court in January, 1831, postponed 
 for consideration, re-argued and finally determined at this Term. 
 
 Irh]i, for the appellant, argued that if the case made is not such an one 
 as entitles the plaintiff to recover either in law or equity, the Court may 
 at any stage interpose and dismiss the bill. Reeves x\ Parish, 1 M'C 
 Ch. Rep. 56. The bill is filed to enforce a legal remed}'. It sets out an 
 accounting before the Ordinary and a decree thereon for the value of the 
 property, which is a confirmation of the sale ; Cates xi. Edgar, ( — ) and 
 on which an adequate remedy at law exists. If the decree adjudicates 
 questions not made in the pleadings it can be set aside at any time, 1 
 Vernon, 292, and the Court will rectify errors apparent on the face of a 
 decree; 6 Yes. 92, 3 Eq. Rep. 616. The decree of Chancellor James, 
 afterwards affirmed by the Court of Appeals, is predicated on the idea 
 that the will hav'ng been set up avoided the sale, but the case of B3'ers 
 and Price v. Benson, 2 N. & M'C. 577, decides that the sale was valid. 
 A decree to refer is not final ; 10 Ves. 34 ; 2 Cranch. 33 ; 17 Johns. 548. 
 And if a decree is not final it may be opened and examined by a Circuit 
 *4511 '^"'^'se. 4 John. Ch. 545. And a decree which *does injustice may 
 be rectified if it is not enrolled, 2 Atk. 386. As regards the case of
 
 *451] 
 
 COLUMBIA, JANUARY, 1834. 307 
 
 Hall V. Goodwyn, 4 M'C. 442, there is a distinction between a judj^incnt 
 which merely t^cttles a legal principle and one which vests a ri;j;ht. The 
 defendant may set up agahist the executor a claim which he has on the 
 estate. He has Matthias Turner's original interest in the estate of John 
 Turner, and his share of Sarah's and Rebecca's part, and to this extent 
 he may hold. But in any event Chancellor De Saussure's decree not 
 having been appealed from is of equal validity with that of Chancellor 
 James, and it sets aside the report of the Commissioner made under the 
 first decree, and must be considered as obligatory on the riglits of tiie 
 plaintiff. 
 
 Gregg, contra. The question is, whether, according to the law and 
 practice of our Court, the decree of the Appeal Court affirming Chan- 
 cellor James's decree, can be reversed ? If our Courts have settled this 
 question, we need not look to England or New York, for lights to guide 
 us. According to the fixed and settled principles of this Court, a final 
 decree on the merits, will not be opened and reviewed. In 1S26 tliis 
 Court refused to entertain a petition for re-hearing in this case. See 
 also Haskell v. Raoul, 1 M'C. Ch. '22; S. C. 2 Tread. App. 852; Carr 
 r. Green, Law Jour. 371. In England, the Chancellor hal)itually 
 reviews the decrees of the Master of the Rolls and Vice Chancellor, and 
 corrects their errors ; but after a case has been heard by the Cliancellor, 
 it will not be opened, but under strong convictions of error; and there 
 is no instance in which the judgment of the House of Lords has been 
 re-heard — nor any instance where a case has been re-heard, after judg- 
 ment, by the Court of Errors, in New York. The decree having settled 
 all the leading points in the case, is conclusive on the parties, and this 
 Court cannot now incpiire into the grounds on which it is based. It has 
 been assumed, in argument, that there was no evidence ; but after this 
 lapse of time, this cannot be known — and it may be, that the decree was 
 predicated on statements and concessions, made on the trial. — At all 
 events, the Court will be careful in laying down a rule which will open a 
 door for the examination of all the decrees of the old Court. 
 
 *W. TJiomjyson, for the appellant, in reply. When the Court r*#co 
 has finally acted on a case and the rights of parties are fixed, the '- 
 decree will not be disturbed ; but as long as the Court has possession of 
 a case it is a right which it claims for itself to correct any error into 
 which it has fallen. Regularly no case should be brought before this 
 Court until it is finally disposed of on the Circuit. The Court will 
 refuse to enforce a decree when "there is error, and will correct instruc- 
 tions, 16 Ves. Senr. 218, 239. In New York interlocutory orders must 
 be appealed from in fifteen days, and yet seven years after, the Court being 
 of opinion there was error, reviewed and reformed the decree. 11 John. 
 548. No decree is final unless it have the binding efficacy of a judgment. 
 2Cranch33; 16 John. 415; 2 Atk. 438: and the Court habitually 
 corrects errors committed in the progress of a cause, 12 Yes. 458 ; 3 Lq. 
 Rep. 616. Where there is a want of jurisdiction the i)arty will be entitled 
 to an appeal "as long as there is a fragment on which he can lay hold." 
 Harrison v. Jenkins, (MS.) Rees v. Parish, 1 M'C. 56; AVilson r. 
 Cheshire, 1 M'C. Ch. 242; Farley v. Farley, 1 M'C. Ch. 506. 
 According to the plaintiff's (Price's) own showing the Court has no
 
 £08 SOUTH CAROLINA EQUITY RErORTS. [*452 
 
 jurisdiction, for he has either no right of relief, or he has a remedy at law 
 in trover, or by action on the administration bond. If the sale by the 
 administratrix be void, he can recover the negroes as executor ; and if 
 valid he can proceed on the bond and recover the amount of the Ordi- 
 nary's decree. There is nothing to impeach the sale to the defendant — 
 as a bona fide purchaser he is entitled to the protection of this Court ; 
 and the estate having been settled up under the administration when all 
 the- parties were conusant of their rights, should be considered as con- 
 clusive, or otherwise according to this decree the parties will have 
 received their distributive shares twice. 
 
 O'Xeall, J. The determination of this ancient and vexatious case, 
 on grounds satisfactory to the parties, is hardly to be expected ; but it is 
 to be hoped, that it may be sustained by such reasons, as will satisfy the 
 bar and the intelligent disinterested community, who have taken so deep 
 ^ , an *interest in it. This hope is expressed, not with a view to 
 -• deprecate censure, or to prevent a critical examination of our 
 judgment; but from a feeling, which has been eloquently described by 
 our learned, venerable, and amiable Chancellor (De Saussure) when he 
 said iu this very cause, that " next to doing justice, the greatest consola- 
 tion of Judges, is so to administer that justice, as to satisfy the parties 
 that the merits of their causes have been fully brought out, ivell consid- 
 ered, and impay-tially decided.'''' 
 
 It is first to be examined and determined whether the appellant has 
 now the right to go back beyond the decree of Chancellor James, at 
 June Term, 1822, and that of the Court of Appeals in Equity affirming 
 his decree, at December Term, 1823. This will depend upon the cha- 
 racter in which they are to be viewed ; if they are together a final 
 judgment in the cause, then there can be no doubt that the appellant will 
 be estopped. But if they have not this character, then they cannot 
 preclude the appellants from examining the whole case 
 
 The distinction between a final and an intei'locutory judgment has not 
 been heretofore generally understood ; and the Court have been again 
 and again eral^arrassed in determining on the question whether the party 
 had the right to appeal, which has been supposed to depend on the 
 question whether the decree was interlocutory or final. On looking into 
 the Act of 1808, 1 Brev. Dig. Tit. 58, sect. C3, I am perfectly satisfied 
 that a party has the right to appeal from " anij order or decree of any 
 Judge presiding on the Circuit." The words quoted are those used in 
 the Act when speaking of and directing the manner in which appeals are 
 to be taken. The distinction between interlocutory and final orders or 
 decrees is not noticed, and a general right of appeals is plainly given 
 from any order or decree from which any person may wish to appeal. 
 The circumstance, therefore, that Chancellor James's decree was appealed 
 from and affirmed by the Court of Appeals, does not aid us in giving 
 character to the judgment. Both may be interlocutory only. 
 
 In the case of Travis v. Waters, 1 John. Ch. Rep. 88, Chancellor 
 
 ;»: i r j-i Kent, speaking of a decree which he declared to *be a final one, 
 
 -^ said, "It was made upon the coming in of the Master's report, 
 
 ascertaining the lands to be conveyed, and the balance to be previously 
 
 paid. It was the final end and closing of the controversy, and was
 
 *454] 
 
 COLUMBIA, JANUARY, 1834. 309 
 
 analogous to ^ final, as contradistinguished from an interlocutory judg- 
 ment at law." This concluding illustration of Chancellor Kent seems 
 to me to point us to the true conception of a final decree. Every one 
 having only a slight acquaintance with legal proceedings, knows that at 
 law an interlocutory judgment is predicated upon the default of one of 
 the parties, and determines that the party in whose favor it is rendered is 
 entitled to recover. But it may, as of course, be opened and set aside on 
 terms in some cases — in others it is Gnal as to the right to recover; but 
 the extent of the recovery is yet to be ascertained Keeping this illus- 
 tration in our minds we should class interlocutory orders or decrees into 
 two kinds. 1st. Those which are of course to be opened and set aside 
 on a party applying to have it done and complying with the usual terms ; 
 2d. Those which fix the right of the party to recover, and which cannot 
 be vacated by the Chancellor, but which still require something farther 
 to be done in order to ascertain and fix the nature, amount, or quantity 
 of the recovery. 
 
 The case of Travis v. Waters, was for a specific performance of a con- 
 tract, for the sale of land, and for an account. " In October, 1808, the 
 Court decreed a conveyance of part of the premises, and directed a Master 
 to take an account of the quantity to be conveyed, and of the payments, 
 and to ascertain the balance due, if any, to the defendant ; that the same 
 be paid, and that the conveyance thereupon be made ; and the question 
 of costs was reserved until the coming in of the Master's report. From 
 this decree there was an appeal to tiie Court of Errors, and the decree 
 was afBrmed." The question was, whether this decree, or that of 1813, 
 upon the Master's report, made up under its direction, was the final 
 decree ? The Chancellor, as I have before said, held the latter to be 
 final, and in declaring his judgment, assigned the reasons which I have 
 already quoted. Speaking of the decree of 1808, he said, it "cannot be 
 so regarded, (i. e. as a final decree) for though the right of *a r^^-c 
 specific performance was declared generally, yet the extent of '- 
 that right and the conditions upon which it was to depend, were not 
 ascertained." An appeal was taken from this decision of Chancellor 
 Kent, and his decree affirmed by the Court of Errors, 12 John. Rep. 
 600. 
 
 In the case of the Methodist Episcopal Church v. Jaques, 1 John. 
 Ch. Rep. 450, decided in June, 1815, the decree declared the principles 
 on which the account should be taken, viz. : 1st. That the marriage set- 
 tlement of the 25th of September, is valid and binding ; 2d. Tliat the 
 defendant, J. D. J., should account for the whole personal estate of his 
 wife, which came to his hands, but without interest; 3d. That he should 
 account for the rents and profits which he received of her real estate, 
 including the leasehold and freehold estate purchased in by him, under 
 the operation of Heyl's mortgage. 4th. No allowance was to be made 
 to the defendant, J. D. J., for the maintenance of his wife and family, 
 during the coverture. 5th. That the real estate left by Mrs. Jaques, 
 including the lands in which the Chancellor, under his third head, had 
 set up a resulting trust in favor of her estate, should be sold, and the 
 proceeds brought into Court, to the end, that the same might be distri- 
 buted according to the deed and will of Mrs. J. In 2 John. Ch. Rep. 
 ^543, September, 1817, the cause came again before the Chancellor on a
 
 310 SOUTH CAROLIXA EQUITY REPORTS. [*455 
 
 collateral question of practice, in relation to the evidence taken before 
 the Master; and in 3 John. Ch. Rep. 1, a disposition of i)art of the 
 fund in Court was decreed. In 3 John. Ch. Rep. 77, (in October and 
 November, 1817,) it was again presented to the Chancellor, on excep- 
 tions to the Master's report. Some of the exceptions were allowed, 
 others disallowed. In the course of his decree, he examined the question, 
 what power of disposition a feme covert has over her separate estate, and 
 decided that she was to be considered a feme sole, to the extent only of 
 the power given her by the marriage settlement. The case was re-com- 
 raitted to the Master, with instructions : he reported in conformity 
 thereto ; and in June, 1818, there was a confirmation generally. The 
 defendants, J. D. J. and R. J. appealed from this decree, and in January, 
 ^ -, 1820, the cause was heard in *the Court of Errors, 17 John. Rep. 
 -J 548. A preliminary objection was interposed, which raised the 
 question, which is the final decree in the cause? It was held by all the 
 Court, that the decree of June, 1818, was the final decree. Ch. J. 
 Spencer, (at page, 559,) said, "an appeal from a final decree opens for 
 consideration all prior or interlocutory orders or decrees any ivay 
 connected with the merits of the final decree.''^ This rule was concurred 
 in by the whole Court, and the appellants were heard on the whole cause. 
 The Court reversed the Chancellor's decisions in various respects, holding 
 that a feme covert, in respect of her personal estate, is to be regarded as 
 Si feme sole in Equity, so far as regards her power of charging or dis- 
 ])osing of the same, unless specially restrained by the instrument under 
 which acquires her separate estate. From the leading error of the 
 Chancellor, in this respect, (as the Court held it to be) they deduced the 
 corollaries that the Chancellor had erred, in the 2d, 3d, 4th and 5th 
 heads or principles of the decree of 1815, directing the account, or so 
 much of them as went to charge the husband with money or property, 
 given by the wife to the husband during coverture — to establish a result- 
 ing trust. in the lands purchased with the proceeds of choses in action, 
 once belonging to the Avife, but given by her to her husband ; or to 
 disallow the defendant, J. D. J., for the maintenance of his wife and 
 family during the coverture ; the wife having clearly agreed to bear the 
 ex]iense thereof out of her separate estate. 
 
 From these authorities, it would hardly admit of a question, that the 
 last decree (that of Chancellor Harper) in this case, was the final decree ; 
 and not the decree of Chancellor James, and that of the Court of Appeals 
 affirming it. For, by the latter, (Chancellor James's decree,) it was 
 decreed, that as the defendant, Nesbit, had sold all the negroes but one, 
 "that he do deliver up that one to the executor, pay for the other negroes, 
 according to their value at the time of his purchase, and their hire, and 
 the hire of the negro retained, from that time to the present time ;" and 
 " tliat the case be referred to the Commissioner, to ascertain the value 
 and hire of the said negroes." 
 
 ^,-->.-| *This decree, so far as it related to the value and hire of the 
 '-I negroes, is like that in the case of Travis r. Waters In both 
 a general right of recovery is established, "yet the extent of that recovery" 
 is "not ascertained." Compare, however, this case, in this respect, Avilh 
 the case of the Methodist Episco]ial Church v. Jaqnes, and it seems to 
 me that the decree (of June, 1815^, in the latter went further to fix and*
 
 *J:57] COLUMBIA, JANUARY, 1834. 311 
 
 establish a rig'ht of recovery, than the decree in hand. For it will be 
 remembered that it. declared a resulting trust in the land purchased by 
 the defendant, J. D. J., and directed it to be sold, and the money brought 
 into the Court to be distributed according to the deed and will of Mrs. 
 J. This was certainly as final as that part of Chancellor James's decree, 
 directing the delivery of the negroes. For the decree establishing the 
 resulting trust, denied the equitable title to be in J. D. J., and the decree 
 of sale a direction for distribution, established the rights of the com- 
 plainants. The reference in each case was, however, necessary to enable 
 the Court to " end the controversy," and all the decrees prior to the decree 
 confirming the Commissioner's report, are to be regarded as not conclu- 
 sive of the right of the parties to I'e-examine them on appeal. For the 
 appeal from the final decree, "opens for consideration all prior or inter- 
 locutory orders or decrees any way connected with the merits of the final 
 decree." 
 
 But it was supposed in the argument, that the fact that the case had 
 been adjudged by the Court of Appeals in Equity, was conclusive of the 
 rights of the parties. Independent of the reason which I have already 
 assigned, why the decree of the Court of Appeals cannot give character 
 as a final decree, to Chancellor James's decree, it may be remarked that 
 in Travis v. Waters, a decree of affirmance by the Court of Errors, in 
 New York, (which is there as well as the Court of Appeals is here, the 
 Court in the last resort) was held not to be final, and it would, of course, 
 be examinable on an appeal from the fin_al decree. 
 
 I agree with the respondent's counsel, that if the decree could be 
 regarded as sl final decree, that it never could be again examined, either 
 by appeal, by a bill of review, or a *re-hearing. Haskel and r^irn 
 others v. Raoul, 1 M'C. Ch. Hep. 22 ; Perkins v. Lang, 1 M'C. L ^^^ 
 Cli. Rep. 30, note; Carr i'. Green, Carolina Law Journal, 371- The 
 Court of Appeals, under the Acts of 1808 and 1824, is the Court in the last 
 resort ; and like the House of Lords in Great Britain, and the Court of 
 Error in New York, a decree by it of affirmance or reversal of a final 
 decree, cannot be examined by a bill of review, or on a motion for re- 
 hearing, for error in matter of law, apparent on the face of the decree. 
 Li such a case there can be no appeal to bring the decision in question, 
 for the controversy is ended. But if the decree of the Court of Appeals 
 does not end the controversy, and still leaves somcting to be dune, to 
 enable the Court to pronounce a judgment, it will be examinable on an 
 appeal from such final judgment. 
 
 In the case of Harrison v. Jenkins, decided December Term, 182S, at 
 Columbia, the defendant did not appeal from the decree of the ClianceUor, 
 directing the land in dispute to be delivered up, and the defendant to 
 account for the rents and profits. When the account for the rents and 
 ])rofits was about to be taken, the complainant entered a disclaimer for 
 the rents and profits, and then the appeal was entered. It was held that 
 the defendant was not bound to appeal, until the account for rents and 
 profits had been taken ; and in that case, which is one of vast importance 
 to the profession, and ought to have been long since published, Judge 
 Nott, on the question as to the party's right to ap])eal, makes the fol- 
 lowing remarks, " I tliink that, generally, where the object of the bill is 
 to obtain the possession of a specific property, the party may and [)erhaps
 
 312 SOUTH CAROLINA EQUITY REPORTS. [*458 
 
 ought to appeal from the decree, and not to wait tlie event of a reference to 
 take an account of hire, or I'ents and profits, which are mere incidents that 
 necessarily follow from the decision of the principal question. Perhaps 
 he viay not lose his right by thus loaiting, unless some change of property 
 or circumstances would render it improper for the Court to interfere ; or, 
 unless by some act or acquiescence of the party, he may have waived his 
 right. But in a case like this, where the Court has no jurisdiction of even a 
 . ^Q-i fibre of the *case, he will be entitled to appeal as long as there is 
 -^ a fragment on which he ea.n lay hold." 
 
 The case of Harrison i;. Jenkins, it seems to me, is decisive of the 
 question we are considering. The Act of 1808, after directing that the 
 Circuit Court of Equity should be held by any one of the five Judges 
 who were by it clothed with equitable powers, provides "that the orders 
 and decrees of the said Judges in all cases wherein appeals shall not be 
 made to the Court of appeals, hereinafter established, shall have the same 
 effect with decrees sanctioned by the Court of Appeals." The defendant 
 has lost the right of appeal from the circuit decree, directing the land to 
 be delivered up, by not giving notice of his appeal in due time, and on 
 this account the case had been struck from the appeal docket, at Spring 
 Terra, 1828. The circuit decree, according to the Act of 1808, was 
 entitled to have the same effect as if it had been afSrmed by the Court of 
 Appeals. In that point of view, the riglit to appeal from the final decree, 
 on the account for the rents and profits, whether the account was taken 
 or disclaimed, would, if pursued, open all prior decrees, whether of the 
 Chancellor or Court of Appeals, for consideration, and according to the 
 most just, righteous and legal result of that case, all prior decrees might 
 be reversed. 
 
 So long as a decree operates merely as authority, or as the reasoning 
 of the Court to prove the party's right in whose favor it is pronounced, 
 it may be reviewed and reversed whenever it comes up properly before 
 the Court of Appeals in any of the subsequent stages of the case. Hall 
 V. Goodwvn, 4 M'C. 442; Pevton v. Smith, lb. 476; Dunlap v. Craw- 
 ford, 2 M'C. Ch. Rep. 171; Lenoir u Silvester, 1 Bail. 641; Rose v. 
 Tidynian, in equity, February Term, 1832, Charleston. The decrees of 
 Chancellor Ja,mes, and of the Court of Appeals in equity, being not final, 
 are to be regarded as authority constituting a strong reason why the 
 cora])lainants are entitled to recover; l)ut examinable on the appeal from 
 the final decree. I concede to them not only the respect of authority, 
 but also of the veneration and admiration with which I always have and 
 *irni ^'^^''"^3'^ shall regard several of *the names then composing the 
 -J Court of Appeals in Equity ; Init still that both of those decrees 
 are manifestly wrong, is, I think, so plain and obvious, that the only 
 reason which can be given why it has so happened, is, because the case 
 was never brought out before either the Chancellor or the Court of 
 Appeals. Each decree is predicated upon a statement of facts, which, if 
 the case had rested upon them alone, would have justified the decrees. 
 But the bill itself stated other facts which rendered those on which the 
 decree were based wholly unimportant, and which showed that Price, the 
 executor had no right to recover the slaves, and that the only real con- 
 troversy was between Rebecca Turner and the defendant, whether her
 
 *460] COLUMBIA, JANUARY, 1834. 313 
 
 conveyance to Mathias Turner should be set aside as fraudulent. This 
 question was not touched, not even hinted at in either of the decrees. 
 
 I shall now proceed to show that, taking everything for granted as 
 stated in the bill, that Price, the executor has no right to recover. The 
 bill, after setting out the will, and the fact that the witnesses refused to 
 prove it, and that administration was granted to Rebecca Turner, who 
 under the order of the Ordinary, sold the personal estate and purchased a 
 considerable part of it — that subsequently the will was proved, and the 
 
 executor, Price, qualified — that there were no debts against the testator 
 
 that the Ordinary had decreed against Rebecca Turner as administra- 
 trix, a sura of which she was in arrear on account of her administration, 
 including the price of the negroes sold and pui'chased hy her, refers to 
 a copy of the decree filed as an exhibit, from which it appears, that 
 "Joseph Price, executor of the estate of John Turner, returned the cita- 
 tion issued requiring the attendance of Rebecca Turner, administratrix 
 of said estate, with an acknowledgment of the service, but refused to 
 attend — and at the request of the executor, to find each legatee's distribu- 
 tory share of said estate under the administration, find her proceedings to 
 stand as follows : An inventory was returned, but there were orders from 
 the Ordinary to sell at different periods, the whole of the goods and 
 chattels of the said deceased, which I suppose (says the Ordinary) to 
 have been done, and the sale bills being returned of different sales amount 
 to $4,308 15 ; deduct *one-third for the widow, leaves $2,812 10. ^^ ., 
 There being twelve legatees, the twelfth part of that sum is ^ 
 $239 34, exclusive of expenses, there being no return thereof — which is 
 each legatee's distributive, which the executor ought to have the govern- 
 ment of, agreeably to the returns of the administratrix, which is the 
 decree of the Ordinary." The bill also set out the conveyance by Rebecca 
 to Mathias, which she alleges to be fraudulent and which has not been 
 tried, and the sale by Mathias to Nesbit with notice. 
 
 In the case of Benson, administrator, v. Price and Byers, 2 N". & M'C. 
 577, it was held that the sale by Rebecca Turner as administratrix was 
 valid. In that case as well as the one before us, there was no fraud 
 alleged on the part of the administratrix. In it Judge Colcock who 
 delivered the opinion says, "when an administration which has been 
 granted, is properly revoked, the latter administrator may sue the former, 
 for money had and received, or in trover for any goods remaining in his 
 possession by him converted or not duly administered. Any other doc- 
 trine would be fraught with the most monstrous inconvenience. The 
 community who are not under the authority of judicial power should be 
 certain of protection in their rights," In the case of Foster c. Brown, 
 1 Bail. 221, administration had been obtained by a fraudulent suppres- 
 sion of the will in which the executor as well as the administrators con- 
 curred ; at the administrators' sale the slave in dispute was jiurchased by 
 one of the administrators, from whose possession he went into that of the 
 defendant, the administrator's son-in-law. It was held that "all-acts 
 done in the due and legal course of administration are valid and binding 
 on all interested, although it be afterwards revoked. Nor can the matter 
 of obtaining the administration, whether fairly or fraudulently, vary the 
 question." To this I would add as another necessary conclusion from 
 the facts of that case and the reasoning of my brother Johnson, that as
 
 314 SOUTH CAROLINA EQUITY REPORTS. [*461 
 
 between the executor and the administrator, the fact that the latter 
 l)ought at his own sale would not, when he had bona fide parted with 
 the possession of the slave, render the sale invalid. 
 *ir9l From these cases I deduce two conclusions, either of which *is 
 ^-' fatal to the plaintiff" Price's right of recovery, as executor. The 
 first is that if he pursued the property as unadministered assets of his 
 testator, his only remedy was by action of detinue or trover at common 
 law. For in this point of view he sets up a legal title, and for its 
 enforcement he has plain and adequate remedy at law. That he could 
 not recover at law, is no reason why he should come into Equity ; unless 
 there was some impediment at law which prevented the assertion of his 
 legal title and which this Court could remove. He has stated none in his 
 bill. For the fact that the administratrix might not be able to pay the dis- 
 tributees or legatees their respective sharf^s of the sum which she was in 
 arrear, is no ground for the interference of the Court of Equity : it may 
 be true, and the parties wholly remediless, and the Court of Equity might 
 be unable to aid them. But if the administratrix was unable to pay, her 
 securities in the administration bond we should legally presume to be 
 sufficient for that purpose ; and in the cuse before us it turns out that 
 Nesbit, the very defendant sought to be charged by this bill with the 
 value of the slaves, is the security of the administratrix. So there is 
 nothing in law or fact in this respect to give color to the jurisdiction of 
 the Court. The second conclusion from the cases cited, is that Price's 
 legal title as executor is defeated. It does not lie in the mouth of the 
 executor to say to the administrator whom he may succeed, "you pur- 
 chased at your own sale and therefore your title is defeated." The lega- 
 tees may if they choose say so : it is at their election whether the sale is 
 to be set aside or supported. If the administrator had the slaves in 
 possession the executor might be entitled to recover — his legal right 
 would be paramount to that of the administratrix, on showing that she 
 liad not accounted for the price. But until then, according to Brown r. 
 Foster, he could not recover. It can be shown that Price has no title 
 to recover the slaves from the administratrix. For on looking through 
 the proceedings it appears, that exclusive of her own share, she or 
 Matthias Turner paid to the legatees more than the value of the slaves 
 in dispute. 
 
 The conveyance by the administratrix to Matthias Turner is to be 
 ^ ,po-i regarded as fair and bona fide, according to its *terms, until the 
 -" contrary is shown, and for present purposes is conceded to be so 
 by the former decrees. This was before the Act of 1824, and according 
 to the case of Legge v. Magwood, State Rep. 116, her conveyance con- 
 veyed to the defendants the legal estate in the said slaves. This too at 
 once ousts the executor's title, which is altogether a legal one. The 
 legatees might possibly set up the trusts of the will against the adminis- 
 tratrix's voluntary donee, or her alienee with notice. 
 
 If the purchase by the administratrix at her own sale may be set aside, 
 it is equally clear that it may be confirmed. If the executor could have 
 raised the question, the decree of tlie Ordinary, which as to him is con- 
 clusive, must be regarded as a confirmation of the sale. Conceding for 
 the present, that the executor had the right to set aside the sale, and 
 pursue the specific property — or to have an account for its value, he has
 
 *463] COLUMBIA, JANUARY, 1834. 315 
 
 elected the latter, in the account before the Ordinary, and is bound by 
 his decree, which estops him from averring that the sale was void. 
 
 On the showing contained in the bill, that there were no debts against 
 the deceased, the executor would have been bound in Equity to assent 
 to the legacies. Rebecca, Ephraira and John, three of the negroes iu 
 dispute, were, by the residuary clause, bequeathed to Rebecca Turner 
 "during her natural life, for her support and maintenance." In Equity 
 she would be regarded as the owner of the slaves, and be entitled to the 
 possession. If her conveyance to Matthias was bona fide, he too, and 
 of course his alienee, would be entitled to the possession during the life 
 of the said Rebecca. The bequest being for her support and mainte- 
 nance, would not lessen her estate; to accomplish its purpose a sale 
 might be necessary. It is true that her alienee, under the circumstances 
 in this case, if his title alone depended upon her title as legatee, ought 
 to be compelled to give security that the property should be forthcoming 
 at her death. This, however, shows that if Price had been entitled to a 
 present decree for John and Sarah, he was not for Rebecca, Ephraim 
 and John. 
 
 The claims of the claimants, Price and Rebecca Turner, *are r^ if. < 
 totally distinct and hostile, and ought never to have been united ■- 
 in the same bill. Indeed they present two totally distinct causes, requiring 
 different proofs and different decrees ; and on this ground, as Rebecca 
 Turner's case has been drop])ed and Price's pursued, which is now found 
 to be unsustainable, the bill might be dismissed. But, looking to the 
 antiquity of the case, and the possibility that the errors of the case since 
 1822, are not to be attributed to the complainants, and especially as the 
 defendant, Nesbit, in his brief and imperfect answer, did not make the 
 objection that he was called on by the same bill to answer to two distinct 
 cases, we shall dismiss the bill as to the complainant Price, executor of 
 John Turner, and retain it for all other purposes. 
 
 It is said that Rebecca Turner or Matthias Turner paid to the lega- 
 tees of John Turner, deceased, the wdiole or the greater part of their 
 shares of the value of the said slaves. This fact makes it necessary that 
 they if alive, or if dead their legal representatives, should be parties. 
 On looking into the will, it appears that the negro man Job was be- 
 queathed to John, and the negro woman Sarah, to Sally Turner, during 
 their respective lives, and the residue of the estate to Rebecca Turner, 
 and at her death to be equally divided among all the testator's children. 
 Sally Turner died before the bill was filed, and her interest under the 
 will, passed, by the residuary clause, to Rebecca for life. John, I pre- 
 sume, is alive, but is a lunatic, he ought to be represented by his com- 
 mittee. Rebecca Turner, we are informed, is dead— it is therefore neces- 
 sary that administration should be taken out on her estate, and a bill of 
 revivor and supplement filed, before any other or further order or pro- 
 ceeding (save that which is about to be made) can be made in the cause. 
 We abstain from any comment on the case, which may be made out 
 under the bill of revivor and supplement. 
 
 It is ordered and decreed that the decrees heretofore pronounced in 
 this cause be reversed, and that the bill, so ftir as Josei)h Price, executor 
 of John Turner, deceased, is concerned, be dismissed ; that the bill for
 
 316 SOUTH CAROLINA EQUITY REPORTS. [*464 
 
 ^ rn all other purposes, be retained ;* and that the cause be remanded 
 -I to the Circuit Court, with directions that upon administration 
 being taken out on the estate of Rebecca Turner, deceased, and a bill of 
 revivor and supplement filed by her administrator, to which the legatees 
 of John Turner, deceased, if alive, or if dead, their legal representatives 
 shall be parties, complainants or defendants, as they may elect, setting 
 out the facts to which allusion has already been made, and requiring the 
 present defendants to answer as to them, the cause be heard de novo on 
 the bills, answers and proof, without any prejudice to any of the said 
 parties from any of the former decrees. 
 
 Johnson, J., concurred. 
 
 .John Stoney, John Magrath, and others, v. Henry Shultz, Thomas 
 Harrison, and others. 
 
 The general rule that there is no implied warranty in sales made by a sheriff or 
 other ministerial officer, applies exclusively to the quality and properly of the 
 thing sold ; it does not apply to cases where the sheriff or other officer assumes an 
 authority where none is given by law. In every case there is an implied covenant 
 on the part of the sheriff, that he has authority to sell ; and the recital in his 
 deed of his authority, as effectually estops Lim, as if it had been an express cov- 
 enant. [*493] 
 
 Under the Act of 1791, the Court of Law has no authority to foreclose a mortgage of 
 lands where the mortgagor is out of possession : and the sheriff having in such 
 case, under an order of the Court of Law, sold the mortgaged premises and 
 received the purchase money and applied it to the satisfaction of the mort- 
 gage and a judgment against the mortgagor, the sale is void, and the purchaser 
 has the right to be reimbursed the sura paid. Primarily the sheriff is liable, as 
 also are the parties who received the benefit, and at whose instance the sale was 
 made ; but in order to avoid multiplicity and circuity of action in the Court of 
 Law, this Court will order the lands to be sold to reimburse the purchaser, and 
 in relief of the mortgage and judgment creditor. [*495] 
 
 Judgment creditors of a co-partnership mny be compelled by the purchasers of the 
 individual property of one of the partners, to exhaust the partnership property 
 before they resort to the property purchased by them ; and if the creditors release 
 the partnership property from the lien of their judgments, they are without any 
 remedy against the purchasers. [Ob. diet.) [*496j 
 
 At common law the legal estate vests in tiie mortgagee ; after condition broken he 
 is entitled to the possession of the land, and may maintain a possessory action 
 against any one in possession and is entitled to receive the rents from the tenants. 
 The Act of 1791, (1 Faust, 63) has made no change in the common law in this 
 respect, where the mortgagor is out of possession ; the proviso of the Act renders 
 it wholly inoperative when the mortgagor is out of possession ; and therefore in 
 such case the mortgagee still has a right to receive and retain the rents, having 
 given notice of the mortgage to the tenants in possession. [*497] 
 A sale and conveyance of land by the sheriff, in pursuance of an order from the 
 Court of Law for the foreclosure of a mortgage, when the mortgagor was out of 
 possession, although void as official acts, for the want of authority in the 
 Court of Law to make the order, will still operate as an assignment of the legal 
 estate of the mortgagee. The sheriff will be regarded as the private agent of the 
 mortgagee, and although his authority be only by parol, the answer of the mort- 
 gagee admitting the facts, is a sufficient compliance with the Statute of Frauds, 
 [*499] 
 
 In ordering a sale of mortgaged premises which had been sold by the mortgagor 
 subsequent to the mortgage, in lots to several purchasers at different periods, the 
 Court directed the sale of the lots in the order in which they had been conveyed
 
 *465] 
 
 COLUMBIA, JANUARY, 1834. 317 
 
 — beginning: with the last, and proceeding according to the order of the dates to 
 the first [*5003 
 
 Allowing credit on a sale of land for the foreclosure of a mortgage, is not a viola- 
 tion of the obligation of contracts. [*500] 
 
 Order by the Ch;iiicellor for the publication of notice to creditors to come in and 
 prove their demands reversed, sufficient notice having been previously given 
 [*5()0] 
 
 The mortgagee is only entitled to the land and the rents accruing from it in the 
 condition it was when mortgaged ; and where the mortgagor had sold the land 
 and the purchasers had improved, and thereby increased the rents, the Court 
 directed the rents to be so apportioned that the mortgagee should only receive the 
 ground rents. [*501] 
 
 On the 5tli of May, 1823, Henry Shnltz purchased 398 acres of land 
 called the Leigh Tract, from Whitefield Brooks, Commissioner in Equity, 
 for $15,500, and mortgaged the same for the money. The mortgai^e 
 was not paid, but Shultz built a town on the land, and added it to the 
 town of Hamburg; and on the 4th June, 1824, mortgaged the same land 
 vfhh. the exception of one lot, to W. E. Snowden, for $36,000. On the 
 3d December, 1824, W. E. Snowden failed, and assigned this mortgage 
 among other things to John Stoney and John Magrath, in trust for his 
 creditors. On the 18th January, 1825, Shultz sold at public sale a num- 
 ber of lots in Hamburg, being part of the mortgaged land. The sale 
 was continued on the 22d February and 28th March, 1825, and many 
 lots were disposed of By the terms of the sale half the purchase-money 
 was to be paid in cash, and all notes or debts of Henry Shultz to be 
 received in payment; the other half to be secured by *bonds r^^nn 
 bearing interest at seven per cent, the interest payable annuallj^, L' '^" 
 and the principal at the option of the purchaser. 
 
 Afterwards Mr. Brooks sued on Shultz's bond and recovered a judg- 
 ment at law, and at Spring Term, 1827, an order was made by consent 
 for the sale of the premises, on the first Monday in June next, on a credit 
 of six and twelve months, the titles to be signed but not delivered ; and 
 in case of failure of the purchaser, the sheriff to re-sell under the same 
 levy. On the first Monday in June, 1827, the sheriff sold, and Shultz 
 became the purchaser at $55,000. He did not pay any money, and on 
 the 4Lh December, 1827, the sheriff, by the directions of the plaintiff, 
 exposed the premises to sale for cash, when John Williamson became the 
 purchaser for $22,000. The purchase was made on the joint account of 
 John Williamson, John Stoney, John Magrath, Paul Fitzsimmons and 
 C. Breighthaupt. The sheriff received the money, made him a deed for 
 the land, and out of the money received from Williamson, paid Mr 
 Brooks principal, interest and costs, and paid the judgment of Augustus 
 Moore v. Henry Shultz. Williamson attempted to take possession — 
 some of the tenants attorned to him, and others refused, against whom 
 actions at law were commenced. 
 
 At October Term, 1828, Henry Shultz was admitted to the benefit, of 
 the Insolvent Debtors' Act, and assigned all his estate, including his right 
 in the 398 acres, to Thomas Harrison, who refused the trust. 
 
 In April, 1830, Law Journal, 184, one of Williamson's actions was 
 tried at Edgefield, and the plaintiff was nonsuited, on the ground that the 
 sale by the sheriff was irregular and void, and the Court of Ajipeals dis- 
 missed the motion to set aside the nonsuit.
 
 318 SOUTH CAROLINA EQUITY REPORTS. [*466 
 
 Williamson died, and John Stoney and John Magrath proved his will. 
 October 4th, 1830. Bill filed by John Stoney, John Magrath, and 
 W. E. Snowden, against Henry Shultz, Harrison and the pnrchasers of 
 Hamburg lots, twenty-six in number, prays the appointment of a trustee 
 in place of Thomas Harrison, and that Shultz may be restrained from 
 suing the tenants of Williamson. That an account may be taken of the 
 amount of the incumbrances, and that the premises may be sold, and 
 Suowden's mortgage paid. 
 
 ^ .„K-, *October 8th, 1830. Bill filed by John Stoney, John Magrath, 
 -I Paul Fitzsimons, and C. Breighthaupt, against Henry Shultz, 
 Whitefield Brooks, and Thomas Harrison, prays that they may have the 
 benefit of Brooks' mortgage and of the judgment, to which the money 
 paid by Williamson was applied. That Thomas Harrison may execute 
 his trust, or that another trustee be appointed. 
 
 4th December, 1830. An order was made restraining Shultz from suing 
 Williamson's tenants ; and appointing Ker Boyce and Thomas Harrison, 
 trustees for the insolvent estate of Henry Shultz, authorizing them to 
 take possession of all the estates included in Shultz's schedule, saving to 
 the purchasers from Shultz, their rights. 
 
 8th December, 1830. Plaintiffs amended the bills by making Boyce 
 and Harrison parties, and praying that the estate of Shultz might be 
 distributed, according to the Insolvent Debtors' Act, and that the trustees 
 may execute their trust. 
 
 1st February, 1831, The trustees advertised for all demands against 
 Shultz to be rendered to them, which was continued for three months. 
 
 2d May, 1831. Bill filed by John Stoney and John Magrath, against 
 the purchasers from Shultz, states that Shultz was indebted to insolvency, 
 to a great number of persons who recovered judgments against him, prior 
 to January, 1825. That the lands in the hands of the purchasers are 
 liable to those judgments, as well as the mortgages of Brooks and 
 Snowden. Prays for injunction and receiver. 
 
 June, 1831. A reference was ordered, and the Commissioner was 
 ordered to ascertain the debts and assets of Henry Shultz. 
 
 20th July, 1831. A dispute having arisen between Mr. Whitner, one 
 of the defendants, and his tenant, as to the order of December, 1831, the 
 Chancellor explained the order by declaring that Mr. Whitner had liberty 
 to proceed against his tenant, who had attorned to Williamson. 
 
 1st October, 1831. Bdl filed by John Stoney, John Magrath, Paul 
 Fitzsimons and C. Breighthaupt, against B. F. Whitner, James Clark, 
 B. M. Blocker, Maurice Johnson and James Cobb, sets forth the debts 
 *4681 ^^^ ^^ Shultz on mortgages *and judgments prior to January, 
 -^ 1825 — the assignment of the judgments to Paul Fitzsimons, on 
 the joint account of himself, Williamson, and the other complainants ; 
 Shultz's sale to the defendants ; the sale by the sheriff, the purchase of 
 Williamson and his entry. That the tenants of the defendants attorned 
 to him ; that since the Court have determined that Williamson did not 
 acquire the fee simple, he must be considered as a mortgagee in posses- 
 sion, and accountable for the rents and profits, but the defendants have 
 commenced actions against the tenants for the recovery of double rents, 
 damages, &c. ; that the defendants are bound to contribute to pay off 
 the mortgages and judgments ; and that the rents received by Williamson
 
 *468] COLUMBIA, JANUARY, 1834. 319 
 
 are a proper subject of account, between complainants and defendants. 
 That the land is not sufficient to discharge the liens upon it. That the 
 defendants unconscieiitiously retain possession, though they have not such 
 a title as will enable the assignees of Shultz to compel them to pay the 
 purchase-money, and run away with the rents, which ought to be applied 
 to the payment of the creditors of Shultz, who have their liens ou the 
 land. 
 
 25th October, 1831. An injunction was granted, preventing the de- 
 fendants named in the bill of I'd May, 1831, from suing the tenants of 
 Williamson, or persons holding under him. 
 
 December, 1831. Harrison and Boyce were appointed receivers for all 
 the Hamburg lots. But a proviso was inserted that this order should 
 not extend to purchasers from Shultz in actual possession ; and the trus- 
 tees of Mrs. Whitner were allowed to retain, on giving security. This 
 order was further explained by an order of 28th January, 1832, to the 
 same effect. 
 
 The answers of K. Boyce and T. Harrison, submit to perform the 
 order of the Court. The answer of Mr. Brooks admits the sale and the 
 receipt of the money due on the mortgage from Williamson ; avers that 
 he has paid it over without notice ; that one-ninth part thereof was paid 
 to the complainants, as assignees of Suowden ; he has no objection to a 
 decree, setting up the mortgage in favor of the plaintiffs, and insists he 
 is improperly made a party. 
 
 *B. F. Whitner claims three lots — insists that one is the lot r^.nq 
 excepted, in the mortgage to Snowden — that the other two were '- 
 bought on the 18th of January, 182.5 — that the sale was advertised many 
 weeks — that Shultz reserved part of the lots for the payment of Brooks — 
 that he owned one-ninth part of that mortgage himself. He understands 
 that his purchase was secure from that mortgage. Shultz stated that he 
 had given Suowden a mortgage, but it was not recorded in time, and 
 would not affect the sale, and that Snowden, who was present, consented 
 to the sale. That Snowden himself was a purchaser, and there appeared 
 the utmost privity between him and Shultz ; half the purchase-money 
 was not to be paid, unless both parties agreed. The defendant supposed 
 Snowden was to be paid by his purchases, or out of the reserved property 
 or the reserved payments. That the lots sold high ; two of them were 
 bought by the defendant for $1,600. He paid half the purchase-money, 
 and complied with the terms, by improving. That he knew Snowden had 
 stopped payment, but did not know he had assigned : and the first' public 
 notice by his assignees was on the 10th February, 1825. He trusts that 
 the Court will not suffer the assignment to avoid Suowden's consent to 
 the sale, and operate so great a fraud to bona Jide purchasers. 
 
 That he was in peaceable possession, and rented to Holmes, Gray, and 
 Tatom — that the plaintiffs prevailed on his tenants to withhold the pos- 
 session and rents of the premises ; that the defendant sued his tenants, 
 and the case was delayed, first to await the trial of the action at law, and 
 since by pretence of an injunction. That one of his tenants has become 
 insolvent, and the circumstances of the others are doubtful. He prays 
 that the plaintiffs be decreed to pay his rents. 
 
 B. F. Whitner's answer to the bill of October, 1831, states that B. F. 
 Whitner & Co., about the 28th July, 1825, bought lot No. 1, for $7,000,
 
 320 SOUTH CAROLINA EQUITY REPORTS. [*469 
 
 and paid for it money, goods, work, labor, &c., and in taking up a debt 
 
 of Shiiltz to Weyraan. That in they bought two unimproved 
 
 lots for $1,600 dollars, and paid $800. That these lots were seized and 
 ♦i-m ^ ' ^^^ *couveyed by the sheriff to Morgan P. Earle, and after- 
 
 ' -' wards by him to J. N. Whitner, and this defendant, in trust for 
 his family, insists his purchase was fair and bona fide. That the trust 
 estate is liable to pay the $800, and he has always been willing, provided 
 his title is cleared up. That Williamson and his agents claim to be. the 
 owners of the Lehigh tract, under color of a title from Thurmond, sheriff 
 of Edgefield, although they were notified, by Shultz, that the sale was 
 illegal, and they have no equitable right to set up the mortgage, because 
 they bought with notice. That they colluded with his tenants to get 
 possession, and prevented him from recovering, by postponing the trial. 
 That the rents were, for the front stories on No. 1, $500, and for the 
 lower story, a rent equal to $2fi0. For the tavern on No. 1, and the 
 stables on the other two lots, $G00 — in all $1,350, when the plaintiffs 
 interfered. That he claims double rent, viz.: from Tatom, from 4th De- 
 cember, 1827, to the 1st August, 1831, and from Holmes and Gray from 
 the 1st October, 1828, to the 1st August, 1831. That by the plaintiff's 
 admission, they are liable for the tenants, and bound to account to the 
 defendants for rents and double rents, amounting to $8,177. That Tatom 
 is dead — insolvent ; Gray has also died, and is believed to be insolvent. 
 He hopes to prove that the premises were restored to him by the consent 
 of the plaintiffs, or their agent. 
 
 That the judgments which the plaintiffs claim, are founded on Bank 
 bills, issued by the Augusta Bridge Company. That in 182G they filed 
 a bill, alleging that they or many of them were fraudulent, or kejtt open 
 by collusion, and an injunction was granted against them. That the 
 plaintiffs afterwards, in 1828, purchased up these judgments, on specula- 
 tion, for twenty-five or thirty cents on the dollar, or thereabouts. That 
 the above bill was then dismissed, and another filed against the Bank of 
 the State of Georgia, charging that these judgments constituted an equit- 
 able lien on the Augusta Bridge, and praying that a receiver of tolls 
 might be appointed. That this bill was afterwards dismissed, in conse- 
 quence of a compromise between the Bank and the plaintiffs, by which 
 the Bank refunded to the plaintiff's the sum they had paid for the judg- 
 ^ ,N,,-j ments,* it being agreed at the same time, that the judgments 
 -^ should be kept open to aid the plaintiffs in their speculations on 
 Hamburg, if necessary. That Shultz made a compromise with the Bank 
 in 1829, in regard to his claims on the Augusta Bridge, which included 
 these same judgments. So that if they ever constituted a lien on the 
 property now in dispute, they have been long since satisfied, and are now 
 kept open by connivance of the parties, for the purpose of fraud. 
 
 That the bill filed by the assignees of Siiowden, does not make the 
 plaintiffs parties, so as to make them account for mesne profits, and a 
 very small part of these profits has accrued on the property embraced iu 
 the mortgage to Snowden, to which any pretence of claim can be set up. 
 He prays that the plaintiffs may be decreed to pay the rents and profits 
 they are wrongfully withholding from him. 
 
 The answers of the other defendants, Holloway, Marsh, Johnson, Co-
 
 *471] COLUMBIA, JANUARY, 1834. 321 
 
 vington, Blodgett, Clark, Knight, Hall, and Ware, rely on the same 
 grounds. 
 
 The answer of James Cobb relies on a lease of the 16th January, 1824, 
 from Shultz to Warhara Cromwell, at $500 per annum ; to pay a debt of 
 $3,000, defendant took an assignment from Cromwell. He insists that 
 this lot is excepted in Snowden's mortgage — that the rents from this lot, 
 while Williamson had possession, were worth $970 per annum. He claims 
 eighteen lots as purchaser, in January, 1825. 
 
 Mr. Terry, the Commissioner of the Court, by his report, dated 
 
 , found the sum due, on the account of the mortgage to Brooks, and 
 
 a judgment of Augustus Moore, which was paid off by the money received 
 from Mr. Williamson. He found the amount due on the judgments 
 against Henry Shultz, assigned to Williamson, to be $8,720 ; and the 
 amount on Bridge bill judgments, to be $33,774 — and the amount due on 
 . Snowdon's mortgage. 
 
 The report states that he had given notice by the newspapers for all 
 creditors to come in, and sets forth a schedule of all the debts which had 
 been proved. 
 
 The report finds that the assets to pay these debts consist* of r^.^,g 
 three hundred and ninety-eight acres, of which the principal value ■- '*" 
 consists of the lots of Hamburg. That about forty of these lots are im- 
 proved, and they are nearly all claimed by purchasers from Shultz, in 
 1825 and 1826, a statement of which is annexed to the report. That 
 these purchasers had given evidence of the damages they had sustained 
 by Williamson's interference, and of Snowden's assent to the sale in 
 1825. 
 
 The plaintiffs excepted, that the report contained a judgment of Otis & 
 Lawrence, in the list of debts, which had not been proved ; and set forth 
 a list of debts, in the order in which they should be paid, as the Commis- 
 sioner had found, and ought to have reported them. 
 
 These several causes were heard as one, by Chancellor Johnston, at 
 Edgefield, on the 19th June, 1832. 
 
 Evidence was given to invalidate the Bridge bill judgments, which were 
 assigned in 1827 to Paul Fitzsimons, on account of himself and the other 
 plaintiffs. Payment of these judgments is resisted on the ground that 
 they are partnership debts of John M'Kinnie and Henry Shultz, and 
 should be paid out of the Augusta Bridge, as partnership property; and 
 that the plaintiffs have released the Bridge, and thereby parted from their 
 rights. This defence depends on the following case : 
 
 On the 1st of July, 1816, John M'Kinnie and Henry Shultz formed a 
 partnership, under the name of the Bridge Company, and issued pnper 
 money, called " Bridge Bills." The stock of the company consisted of 
 the bridge, valued at $75,000 ; houses in Augusta, valued at $25,000, and 
 lands in Carolina, valued at $5,000. On the 21st April, 1818, Shultz, 
 in consideration of $63,000, and a covenant to save him harmless from 
 the partnership debts, conveyed all his interest in the Bridge Company 
 to Barna M'Kinnie, and retired from the concern, which was announced 
 on the 10th February, 1819. On the 12th March, 1819, John & Barna 
 M'Kinnie executed their bond to Shultz, in $500,000, conditioned to save 
 him harmless from the Bridge bills. On the 10th June, 1819, J. & B. 
 M'Kinnie mortgaged the bridge, with other property, to the Bank of the 
 Vol. L— 21
 
 322 SOUTH CAROLINA EQUITY REPORTS. [*4T2 
 
 State of Georgia, to secure $90,000. Under an execution against Barna 
 *i'7^1 M'Kinnie, *the bridge was sold, and bought by the Bank. In May, 
 -^ 1821, the mortgage of J. & B. M'Kinnie was foreclosed, and the prop- 
 erty advertised for sale. On the 9th May, 1821, Henry Shultz and C. 
 Breighthaupt filed their bill in the United States Court at Savannah, to 
 enjoin the sale of the Bridge, insisting that it was partnership property and 
 should be applied to pay Bridge bills. C. Breighthaupt joined in the 
 suits, as a holder of Bridge bills. The injunction was granted, and on 
 the 28th December, 1821, an order was made by consent, appointing F. 
 Walker and C. Fitzsiraons, Commissioners, to take possession and sell 
 the Bridge, and requiring all parties to join in a power of attorney to 
 them. This was done, and they sold the bridge on the 28th November, 
 1822, for $70,000, to the Bank of Georgia, who paid the money, which 
 was deposited in their vaults, to abide the events of the suits. By another 
 order $5000 were directed to be paid to the plaintiffs, upon security to. 
 account for the same when required. The bill was afterwards dismissed 
 for want of jurisdiction. Whereupon Shultz took possession of the Caro- 
 lina part of the Bridge ; and John Williamson filed a bill against the 
 Bank, Shultz and M'Kinnie claiming payment of the judgments assigned 
 to Fitzsimons, on the same grounds taken by Shultz in the bill in the 
 Federal Court. The Bank compromised with all the parties. On the 
 30 December, J. M'Kinnie, B. M'Kinnie and their wives released dowers 
 and all demands. On the 8th May, 1829, P. Fitzsimons, in considera- 
 tion of $10,000, released all claims on the bridge, under the Bridge Bill 
 judgments; and on the 15th September, 1829, Henry Shultz, in conside- 
 ration of the like sum, released all his demands. The following docu- 
 mentary evidence was produced by the defendants, viz.: Paul Fitzsimons 
 to the Bank of Georgia, 8th May, 1829 — release ; Henry Shultz to the 
 Bank of Georgia, 15th September, 1829 — release. 
 
 September, 1829 — Release of all demands on the Bridge. 
 
 J. Williamson v. the Bank of Georgia, John M'Kinnie and Henry 
 Shultz. Bill filed 6th Alay, 1828. Answer of the Bank, 10th May, 1828. 
 
 Stoney & Magrath, assignees of Snowden, v. Andrew Lowe. Bill 
 filed 25th May, 1826. 
 
 n^A>7n *The ])laintiffs produced an office copy. — Henry Shultz to 
 -^ Barna M'Kinnie. Conveyance of the Bridge and Bridge Company 
 Stock. 
 
 J. & B. M'Kinnie to the Bank of the State of Georgia. 10th June, 
 1829. Mortgage of the Bridge. 
 
 William Lambkin to the Bank of the State of Georgia — 19th Decem- 
 ber, 1821. Deed for the Bridge. 
 
 The Bank of Georgia v. J. & B. M'Kinnie. Foreclosure of Mortgage 
 —May, 1821. 
 
 Mr. Hale was examined for the plaintiffs. 
 
 The Bank had large claims against the M'Kinnies, and took a mort- 
 gage dated 3d May, 1819. There was a misnomer — and another mort- 
 gage was executed on the 10th June, 1819. The mortgage was fore- 
 closed, and the Bank received possession from the sheriff of Richmond, 
 and kept the possession until the suit in the Federal Court. — After that 
 suit was dismissed, tlie Court of Equity took possession of the Carolina 
 end, and the Bank kept the Georgia part. A compromise was made
 
 *474] COLUMBIA, JANUARY, 1834. 323 
 
 with Paul Fitzsimons, 28tli May, 1829. The Bank claimed under their 
 title. — They did not admit the right of Fitzsimons; but not knowin«>' 
 what the issue of a suit might be, paid for a release of all demands-- 
 compromised with the M'Kinnies first — the dower of their wives was 
 released, and they gave up the title deeds. Another compromise was 
 made with Shultz, the 15th September, 1829. 
 
 Shultz may have given up some Bridge bills, which he said he had 
 bought, or which were delivered to him as agent for others. The 
 M'Kinnies owe the Bank more than $90,000 in executions. 
 
 Cross-examined. The profits of the bridge have i)een generally 
 received by the Bank. The tolls have amounted to upwards of $100,000. 
 The Bridge has been almost rebuilt. Last year, for the first time, some- 
 thing was carried from the Bridge to the profit of the Bank Bridge bills 
 have sold at 12^ cents on the dollar. The Bank claimed in their own 
 right, under their mortgage and the sale of the sheriff of Richmond. 
 
 The transcript of the proceedings in the Federal Court, *\vas r^ ,*,- 
 introduced, to show on what grounds the Brigde was supposed to •- 
 be liable to the Bridge bills, and how the claim was resisted. 
 
 The defendants called James Marsh. He stated that Snowden was at 
 the sale in January, 1825, and told him he and Shultz had come to an 
 understanding, and he expected to buy the property himself. He did 
 not tell witness he had made an assignment. 
 
 Robert M'Donald examined. Breighthaupt told him they bought up 
 Bridge Bills — some at 37|-, some at 50 cents — bought as low as they 
 could, to protect Snowden's debt. 
 
 Henry Shultz was called as witness. His testimony was objected to, 
 but received. 
 
 " It was known at the sale that Snowden and Brooks had mortgages, 
 and that they were not paid. As to Brooks' mortgage, property was 
 reserved, and if that was insufficient, I sold subject to the mortgage. As 
 to Snowden, I said he is present and consents — he was five or six feet 
 from me at the time. Snowden and I had made an arrangement. — He 
 was to buy a square — I knew he had made an assignment, but I did not 
 make it known. He brought me a letter from his assignee, saying he 
 was authorised to settle the Hamburg business — I considered that this 
 left him the same power he had before. That letter cannot be found. It 
 was agreed that I should receive half the purchase money in ray notes, 
 the rest in seven per cent, stock, which he was to take in payment of his 
 mortgage, till it was satisfied. He bought one lot and paid the money." 
 [Here were produced the original papers of the settlement between him 
 and the M'Kinnies, and an entry respecting the bridge as part of the 
 stock of the Bridge Company, liable to the payment of Bridge bills.] 
 
 He admitted the advertisement shown him, and that he intended to 
 sell, whether Snowden consented or not. — Thinks Snowden an honest 
 man. — He never asked Snowden for a release, thought it unnecessary. 
 
 Mr. S. said he compromised with the Bank at $10,000; he bound 
 himself not to induce the Bridge Bill holders to sue the Bank. 
 
 ^Defendants offered in evidence a receipt of C. Breighthaujit to r* <>-(> 
 George Glenn, for $5000, paid by order of the Federal Court in L ' 
 the case of Shultz and Breighthaupt v. the Bank of Georgia. 
 
 The Chancellor by his decree, declared the mortgage of Brooks and
 
 324 SOUTH CAROLINA EQUITY REPORTS. [*476 
 
 the judgment of Moore to be subsisting incumbrances for the benefit of 
 
 Williamson that the lands in the hands of the purchasers were liable as 
 
 well to the Bridge Bill judgments as to the mortgage of Snowden ; and 
 that Williamson should account as a mortgagee in possession — but that a 
 portion of the rents should be allowed to the purchasers for their improve- 
 ments. 
 
 His Honor ordered the lands to be sold on a credit — the case to be 
 referred again to the Commissioner to ascertain the debts of Shultz, and 
 to take the accounts — and ordered Breighthaupt to account for the $5000, 
 received from the Federal Court in May, 1825. 
 
 The plaintiffs appealed from so much of this decree as declares that 
 the rents received by Williamson, are liable to be apportioned between 
 him and the purchasers who have improved. They also appeal from the 
 order made by his Honor in the following particulars. 
 
 1. The sale of the premises on credit. They submit to the Court that 
 they are entitled to be paid in money, and that if payment of a debt 
 which is their due can only be obtained by a judicial sale on credit, the 
 decree or order of the Court in such cases is to all intents and purposes 
 as much a violation of the obligation of contracts, as an instalment, 
 replevin or alleviation law. 
 
 2. Tlie reference to the Commissioner. — They bring to the view of the 
 Court that the trustees advertised for creditors three months, and that 
 Mr. Boyce has set forth in his answer, the names of the creditors who 
 have come in to prove their demands. That the Commissioner afterwards 
 by the order of the Court advertised three months for creditors, and has 
 made his report of the creditors who have proved, and of the amount of 
 their demands, and the order of reference is therefore superfluous — that it 
 
 ^ tends to delay and burthen *with additional expense, the com- 
 -^ plainants and all the creditors who have come in, and that it ought 
 not to be made. 
 
 3. From the apportionment of the rents — they submit that Mr. 
 Williamson is accountable, as a mortgagee in possession — that the 
 amount of rents which came to his hands is to be deducted from his debt, 
 and that he is not answerable for those rents in any other way. 
 
 4. From the order requiring Mr. Breighthaupt to account for $5000, 
 received from the Register of the Federal Court, in May, 1825. Mr. B. 
 insists that this transaction has no connection with the present suit — 
 that if he is accountable to any body it is to the Bank of Georgia, or the 
 Federal Court, and he has accounted to both, and his bond has been 
 given up — that he is certainly not accountable for the same in this suit, 
 and that the reference ordered is neither proper in itself nor embraced in 
 the pleadings. 
 
 Defendants appeal from the decree of the Chancellor : 
 
 1. Because he erred in setting up Brook's mortgage in favor of the 
 complainants and Moore's judgments. 
 
 2. Because if complainants are entitled to be subrogated to Brooks — 
 it can only be to those rights which would have accrued if the sale had 
 been good — they have no Equity to more than a valid sale would have 
 given them. 
 
 3". Because the Chancellor erred in establishing the Bridge Bill judg- 
 ments on the Hamburg lots.
 
 *477] COLUMBIA, JANUARY, 1834. 325 
 
 4. Because the Chancellor erred in establishing the lien of the Brid"-e 
 Bill judgments against the lot owners. 
 
 5. Because he erred in decreeing that the rents, however obtained by 
 "Williamson and his representatives, should not be returned to the lot 
 owners. 
 
 6. Because he erred in not decreeing that the lot owners should receive 
 rents and double rents, for those lots from which they had been ejected, 
 
 T. Because he erred in not decreeing that the lots should be sold 
 according to the dates of the deeds for them, beginning with the 
 youngest. 
 
 The case was argued at May Term, 1833. 
 
 "^ Blandinfj , for the defendants. First — As to the rights of the r:)c|i,Q 
 executors of Williamson under Brook's mortgage. — He contended, L 
 1st, that they have none ; 2d, that they have none against the lot 
 holders. 
 
 The right of substitution or subrogation is derived from the civil law, 
 1 Poth. on Ob. 215. The security may require a creditor to assign all 
 securities. There are different classes of eases — one is subrogation, the 
 other, substitution ; 1 Poth. on Ob. 320. Where a security pays off a 
 debt he must get an assignment, or demand it, to entitle him to the rights 
 of the creditor: but the Court will not make the substitution in favor of 
 a stranger who voluntarily pays the debt and relieves the fund ; 1 Domat, 
 360. He is entitled to the place of the creditor, 1st, where there is an 
 assignment ; 2d, where he pays under a judicial order ; 3d, where he 
 pays with the assent of the debtor. But if any will be prejudiced there 
 will be no substitution. 4 Eq. Rep. 74; Smith u. Cunningham, Harp. 
 Eq. Rep. 91. And see 8 D. & E. 310, 614 ; 1 lb. 21, as to the right 
 at common law to pay money for another. Before the judgment of 
 Brooks, Shultz had sold and put the lotholders in possession — at the 
 sale to foreclose the mortgage he forbid it, and gave notice that it was 
 void on the ground that the credit at the first sale had not expired. 
 With a knowlege of these facts the sale was made, the money paid, and 
 the titles executed. The complainants did not then contend for 'the 
 right of subrogation. There were two sureties liable before the lot- 
 holders — the unsold lots, and Shultz's personal property. But Shultz 
 having sold and being out of possession when the mortgage was fore- 
 closed, the order for the sale was void as against Shultz's purchasers in 
 possession. Williamson bought, therefore, only the unsold lots, and his 
 subrogation can only extend to them. Moore's judgment must stand on 
 the same footing. According to the proviso of the Act of 1791, (a) (1 
 
 (a) In order that the arguments of counsel and the decision of the Court on the 
 construction of this Act may be understood by those unacquainted with our statute 
 law, the preamble and the first and second sections, of the Act, together with the 
 explanatory Act of 1797, are here inserted.] 
 
 " Whereas mortgagees are generally meant merely as securities for debts, and no 
 actual estate is intended to be conveyed by the mortgagor to the mortgagee ; but 
 the mortgaged estate is intended, and ought to be considered only as a pledge for 
 the payment of the principal and interest due on the debt meant to be secured. 
 And whereas, the present mode of foreclosing mortgages of re.al estates, is tedious 
 and expensive, and the right of the mortgagor to his equity of redemption, is in the 
 present mode of exercising that right, attended with inconvenience ; Now for the 
 easier and speedier advancement of justice, in obtaining the payment of debts se-
 
 326 SOUTH CAROLINA EQUITY REPORTS. [*479 
 
 *J."Q1 *Faiist, 63,) and the decision in Durand v. Isaacs, 4 M'C. 54, 
 * -I where the mortgagor is out of possession, and his alienee iti the 
 Court of law cannot order a foreclosure — the order was therefore void 
 as against the alienee. But the ground of relief relied on appears to be 
 mistake. There was no mistake of fact, and it is not a mistake in law. in 
 which both concur in mind. It may be ignorance of the law in one, but 
 this affords no ground of relief 
 
 Secondly. What effect is Snowden's mortgage to have against the 
 purchasers of January, 1825 ? One lot and two leases previously exe- 
 cuted, held by Whitner and Cobb, were excepted from the mortgage. 
 But the decree docs not exempt them. The decree of the Chancellor 
 supposes that nothing was sold but the equity of redemption, but it is 
 contended that there was a sale of the absolute fee. Snowden was 
 
 cured by mortgage, aud for ascertaining when the equity of redemption of the 
 mortgagor shall be barred : 
 
 Be it enacted, ^-c, That on judgment being obtained in the Court of Common Pleas 
 on any bond, note or debt, secured by mortgage of real estate, it shall and may be 
 lawful for the judges of the Court of Common Pleas, in case of any judgment having 
 been obtained subsequent to the property's being mortgaged, and prior to the 
 obtaining judgment in the action hereby allowed to be commenced, to order the 
 sale of the mortgaged property for the satisfaction of the moneys secured by the 
 said mortgage, and to give a reasonable extension of the time when the sale is to 
 take place, not exceeding the terra of six months from the judgment; and also to 
 give a reasonable credit on the sale of the mortgaged premises, not exceeding the 
 term of twelve months from the sale ; and the mortgagor shall be for ever barred 
 and foreclosed by such sale from his equity of redemption, in as complete a manner 
 as if the same had been foreclosed in a Court of Chancery ; any law, usage or custom 
 to the contrary notwithstanding: Provided always, That if at any time before such 
 sale, the mortgagor shall tender to, or pay into the hands of the plaintiff, or his 
 agent or attorney, or to the sheriff, all the principal money and interest meant to 
 be secured by such mortgage, and also all the costs of the suit, the sale shall not take 
 place, but tlie mortgagee shall enter satisfaction on the said mortgage, and the 
 mortgaged premises shall be for ever exempt from the said mortgage. 
 
 And be it further enacted ly the authority aforesaid. That no mortgagee shall be 
 entitled to maintain any possessory action for the real estate mortgaged, even after 
 the time allotted for the payment of the money secured by mortgage is elapsed, but 
 the mortgagor shall be still deemed owner of the land, and the mortgagee as owner 
 of the money lent or due, and shall be entitled to recover satisfaction for the same 
 out of the land in the manner above set forth. Provided always, That nothing 
 herein contained shall extend to any suit or action now pending, or when the mort- 
 gagor shall be out of possession, nor to contravene in any way, the ordinance,enti- 
 tled, " An ordinance to encourage subjects of foreign states to lend money at 
 interest on real estates within this State," nor to deprive any person or persons of 
 any right which he, she or they may have at the time of passing this Act." 
 
 [ The explanatory Act of 1797, 2 Faust 157, is as follows:] 
 
 " Whereas under the act, entitled, "An act for establishing an easier and cheaper 
 mode of recovering money by mortgage on real estates, and barring the equity of 
 redemption, and for abolishing the fictitious proceedings in the action of ejectment," 
 doubts have arisen, whether a mortgagee, taking a release of the equity of redemp- 
 tion from his mortgagor, can be considered as legally aud fully seized of the 
 ipremises mortgaged, inasmuch as that Act declares that the premises mortgaged are 
 : still to be deemed the estate of the mortgagor, and only a pledge in the hands of the 
 mortgagee, who is not thereby vested with any legal estate, and therefore cannot be 
 benefitted by such a release ; 
 _ Be it therefore enacted, ^-c. That all releases of the equity of redemption made 
 since the passing of the said Act, or hereafter to be made, shall have the same force 
 and effect in law as if the said Act had not been passed."
 
 ^479] 
 
 COLUMBIA, JANUARY, 1834. 327 
 
 present, was himself a purcliaser, permitted the "''sale, and the fee p.. 
 simple value was given, and it was stated that there was propertv '- 
 reserved sufficient to pay the mortgage, which statement he did not con- 
 tradict. His presence and acquiescence was a waiver of his lien, 1 
 Domat, 363 ; 4 Ves. 389 ; or otherwise a fraud will have been practised 
 on the purchasers. 
 
 Suppose, however, all the mortgages and judgments to be set up, still 
 the defendants are entitled to rents and profits, and double rents The 
 Chancellor supposes the proviso to the act of 1791 to be a qualification 
 to the whole act, and that therefore, as between the mortgagee and 
 alienees of Shultz, the mortgagee is the legal owner. In this, however, 
 it is submitted, he is mistaken. The first part of the proviso declares 
 that it shall not defeat suits pending at its passage ; the second merely 
 qualifies tlie right of foreclosure, and restricts it to a particular case, and 
 does not apply to *the second clause of the act, which denies the r^.Q-, 
 possessory action in toto. The equity of redemption, as it is ^ 
 called in the act, has been held to be a legal estate, and the subject of 
 levy and sale by the sheriff, as the property of the mortgagor; but if the 
 Chancellor's construction be correct, there is no legal estate. 
 
 If this construction be correct, who is entitled to the rents and profits ? 
 The rule is correctly laid down in Green v. Biddle, 8 Wheat. 81, that 
 the right to the rents and profits depends upon the fact who has the 
 legal or equitable estate. It is admitted that in England, where there is 
 an elder mortgage or judgment, a junior judgment or mortgage creditor 
 may have an account for the rents and profits ; but it is denied that a 
 naked judgment creditor, or that a naked mortgage, has that right. The 
 reason assigned, is that he has a complete remedy at law ; and the 
 reason why it is allowable in the first case is, that the kgal estate is in 
 the mortgagee, and there is therefore no remedy : 3 Atk. 244, Meade v. 
 Orreey, Powell on Mortgages, 232 : Duke of St. Alban's case, 3 Ves 
 25. The alienee of the mortgagor is the owner of the legal estate, 
 subject to the incumbrance. An account for rents and profits cannot be 
 taken until after condition Ijroken. A mortgage in this State is on pre- 
 cisely the same footing. Snowden had no legal estate — his is merely an 
 equitable interest, and his presence and assent to the sale, rebuts his 
 equity, and precludes his right to an account for rents. 
 
 He contended that the lotholders were entitled to a decree for what- 
 ever they might have recovered from their tenants at law ; or that the 
 injunctions be dissolved. 
 
 As to the right of the alienees to the value of their imi)rovemcnts.— 
 Under our act the alienee is the legal owner of the estate. No such 
 question can ensue between mortgagor and mortgagee ; for all the 
 mortgagor's property is liable to the payment of his debt, but the alienee 
 is only subject to be divested of the mortgaged property. The act 
 having refused jurisdiction in such case to the Courts of law, shows that 
 the legislature supposed that the alienee might have equities which could 
 not be set up at law. The civil *law allows for improvements in r*^g2 
 cases of hypothecation. 1 Poth. 335. In Green v. Biddle, 8 >- 
 Wheat. 81, the question is investigated, and the authority of Porter's 
 case, 1 Co. 17, recognized. Pow. on Mortgages, 1040. There will be 
 no difficulty in allowing the value of the improvements out of the sale,
 
 328 SOUTH CAROLINA EQUITY REPORTS. [*-±82 
 
 should one be ordered. And this can be done by ascertaining the 
 present value of the lots unimproved, or the value when sold, and sub- 
 tract it from the amount of the sales. When Williamson comes in for 
 subrogation, the Court will not allow it beyond the thing mortgaged ; 
 and Snowden's conduct should prevent him from asking or receiving any 
 thing beyond that; for the terms of the sale in his presence were that 
 the purchasers should improve, and his consent entirely precludes him 
 from denying the purchasers' rights to rents on the improvements. 
 
 As to the Bridge Bill judgments. He contended from the facts that 
 it appeared that the Bridge, having been partnership property, was 
 previously liable to the payment of these judgments before the private 
 property of Shultz should be subjected to them — the judgments being 
 existing liens on the Bridge, and the complainants having after a course 
 of litigation compromised their claims, and released their lien on the 
 Bridge, operated as a release and discharge of the judgments, so far at 
 least as the defendants the alienees of Shultz are concerned, Levey v. 
 Hampton, 1 M'C. Ch. 116; 1 Eq. Rep. 321; 1 Poth. on Ob. 322, uo. 
 521. 
 
 Feftigru, for the plaintiffs. 1. The mortgage of Brooks is still a sub- 
 sisting debt. A security which has been cancelled or given up without 
 satisfaction, may be the subject of equitable jurisdiction. Burrows v. 
 M'Whann, 1 De Saus. 409. Even at law a satisfaction has been 
 vacated in favor of an assignee, Wardell v. Eden, 1 Johns Rep. 531, note, 
 S. C. 2 Johns. Cas. 121. If Thurmond had uo right to sell, he had no 
 right to receive payment. The money received from Williamson there- 
 fore is as money received to Williamson's use by Brooks and Moore. 
 When the sale_,was declared void, every thing which depended on the 
 sale — the right of the purchaser to the land — the right of the creditor to 
 the price paid — the right of Shultz to the application of the money to the 
 *48ST satisfaction *of the judgment and mortgage, are all discharged. 
 -' Barton v. Petits, 1 Cr. 28S. If the money was still in Mr. 
 Brooks' hands there could be no doubt that he ought to pay it back ; 
 and if Williamson has a right to a return of his money, the acknowledg- 
 ment of that right is equivalent to an admission that some one has a 
 right to enforce the mortgage. But it is said that the mortgage, though 
 it might avail the vendors, cannot be set up in favor of Williamson — 
 that the Leighs are satisfied, and of course the mortgage is extinct. — 
 But Williamson is not satisfied, and the mortgagees are bound to make 
 good his loss, so far as they can by allowing him to stand in their place, 
 and to operate his relief through their equity. This is called substitution, 
 and the rules by which it is governed must be sought in the English 
 Chancery, not in the civil law — subrogation is not a word known to our 
 law. The limitation of this Equity, which the learned counsel would 
 deduce from the civil law, to the exclusion of a person who has volun- 
 tarily paid, is not well founded. King v. Baldwin, 2 Johns. Ch. Rep. 
 554; Hayes v. Ward, 4 Johns. C. C. 123 ; Green v. Hart, 1 Johns. 
 Ch. Rep. 580. The idea that no one can be allowed to stand in the 
 place of a creditor whom he has paid off, unless that payment was made 
 under legal compulsion, is directly contrary to Harris v. Lee, 1 P. Wms. 
 483 ; Marlow v. Pitfield, Ibid. 569 ; Heushaw v. Wilson, (MS.)
 
 *483] COLUMBIA, JANUARY, 1834. 329 
 
 Charleston, 1828, in this Court. He that voluntarily pays the del)t of 
 another without i-equest cannot recover as for money paid to the use of 
 the other ; and Equity does not aid a mere intermeddler. But tiiere was 
 nothing officious in Mr. Williamson's conduct. The mortgagees who 
 advertised the land and invited bidders, cannot make him suffer for their 
 blunder, by calling him a volunteer. 
 
 2. The mortgage of Snowden. It is not pretended that this is paid, 
 but it is said that Snowden was present consenting to a sale, and there- 
 fore against purchasers his mortgage is void. If the purchasers had been 
 ignorant of Snowden's mortgage, and he had seen them buying without 
 giving notice, they would have had a defence against him on the ground 
 of concealment. But notice was publicly given of his mortgage, and the 
 title deeds recite a story which amounts *to this : *that Shultz r-j- ,0 i 
 and the purchasers, finding that Snowdeu has concealed his mort- L 
 gage from them, have thought proper to contract for the purchase aud 
 sale of the mortgaged premises, in order to prevent this concealed mort- 
 gage from being set up against them. It is unnecessary to discuss 
 seriously the question, whether a verbal assent would be enough from a 
 mortgagee. For it is apparent that no consent was asked or given, and 
 the sale was evidently a mere juggle. Snowden was brought there as 
 part of the contrivance, and the deeds of conveyance are nothing but a 
 trick. 
 
 3. As to the judgments against Henry Shultz and John M'Kinnie. 
 It is denied by the defendants that the money due on these judgments 
 can be levied of Henry Shultz's land, and the reason given is, that they 
 are judgments for the partnership debt of Henry Shultz and John 
 M'Kinnie, trading under the name of the Bridge Company, and that the 
 complainants in consideration of $10,000, have released all their claim in 
 the Augusta Bridge. To refute this objection, it is necessary to consider 
 how partnership property stands in relation to creditors, at law, in equity, 
 and in bankruptcy. At law^ the partnership creditor can take either the 
 joint or separate effects of either partner. The separate creditor can 
 take the joint effects only suh modo. Moody v. Payne, 2 Johns. Ch. 
 
 Rep. .584 ; The King v. Sanderson, 50. Thus at law there is no 
 
 difficulty in the joint creditor seizing the separate effect ; the difficulty 
 regards the separate creditor only. The rule in equity has reference only 
 to the rights of partners as between one another. They are joint-tenants 
 not only of the goods of which the stock is first constituted, but of the 
 effects acquired in the course of trade ; and nothing is to be considered 
 as the absolute property of a partner, but the residue or balance due him 
 after an account has been taken and all the debts have been paid. West 
 V. Skip, 1 Yes. 242. 
 
 In bankruptcy, the same principle which governs in equity, viz., that 
 the share of the partner is only the residue or balance of the account, is 
 made the foundation for a rule of distribution between creditors. Part- 
 nership creditors take the joint effects, and separate creditors take the 
 separate effects.* But let it be observed that this is strictly a r+^gj 
 rule in bankruptcy, and that where there is no bankrupt laws 
 there is no room for the introduction of it. There is nothing but the 
 bankrupt law which can prevent a judgment creditor of the partnership 
 from extending the land of one of the partners. Equity cannot enjoin
 
 330 SOUTH CAROLINA EQUITY REPORTS. [*485 
 
 him. Moody v. Paioe, 2 Johns. Ch. Rep. 584. If John M'Kinnie and 
 Henry Shultz were actually carrying on business as partners, and were 
 jointly possessed of the Augusta Bridge, and Shultz seized in severalty of 
 the town of Hamburg, there is nothing to prevent a judgment creditor of 
 the two, from taking the land of one of them in execution. Suppose the 
 case of an English partnership. As long as there is no commission of 
 bankruptcy, there would be no authority to interfere with the creditor in 
 the choice of his remedies. But when a commission issues, the joint- 
 creditors acquire an interest in the joint effects, and the separate credi ors 
 in the separate effects. Unless the Court has the power of making a dis- 
 tribution of the separate effects, it cannot interfere with the equal right 
 of an execution creditor. If one partner were to file a bill against 
 another, the Court of Chancery would get jurisdiction of the partnership 
 effects, and cause them to be applied to partnership debts : but Chancery 
 jurisdiction stops here. It cannot prevent the joint creditor from his 
 legal execution against the separate effects, because it has no right to 
 distribute the separate effects of the partner among his separate creditors. 
 The notion, therefore, that separate effects are to be applied to the pay- 
 ment of the separate creditors, to the exclusion of joint creditors, arises 
 from a misconception of the different powers that belong to the Chancellor 
 in a Court of Chancery, and sitting under the authority of a statute of 
 bankruptcy. In the latter jurisdiction he has the power of doing com- 
 plete justice ; he distributes both the joint and separate estate; Chancery 
 can distribute the joint estate only. The separate is governed entirely by 
 the rules of the common law, as long as there is no statute of bankruptcy. 
 The bankrupt law cuts down all creditors to a level, but where there is 
 no bankrupt law there is no authority to divest a judgment creditor of 
 the lien of his judgment. 
 
 *isr"l *There is nothing then to prevent partnership creditors from 
 ■J extending the land of one of the partners. To the other objec- 
 tion, viz., that they have released the bridge, the answer is, that the 
 Augusta Bridge never was liable to these judgments at all, and the money 
 paid by the Bank of Georgia was imrely the price of peace. An exami- 
 nation of the dates will show that Mr. Shultz parted from all his interest 
 in the bridge, long before these judgments were obtained. The defend- 
 ants contend that the sale made by Mr. Shultz does not prevent the 
 bridge from being assets to pay the creditors of Henry Shultz and John 
 M'Kinnie. But even under the bankrupt law creditors have no lien 
 before a commission issues on the partnership effects. And if one partner 
 bona fide disposes of his interest in the partnership effects to the other, 
 they become separate effects ; if to a third person, taking his place in the 
 ])artnership, they become the effects of the new firm. This is precisely 
 the case of Ex parte RufBn, 6 Ves. 119. The notion that the effects can 
 be followed after a bona fide alienation, is without any authority, and all 
 the litigation in the Courts of this State and Georgia, and the United 
 States, was founded on a total misconception of the case. Ex parte 
 Williams, 11 Ves. 3 ; Ex parte Fell, 10 Ves. 347 ; Ex parte Rowland- 
 son, 2 Ves. & B. 174; Duff u. E. I. Co., 15 Ves. 215. 
 
 4. The next ground relates to the right of Mr. Williamson as a mort- 
 gagee, to i-ecoup the rents received from the Hamburg lots, in the amount 
 of his mortgage.
 
 *486] COLUMBIA, JANUARY, 1834. 331 
 
 "We contend tbat he is a mortgagee in possession. The notion tliat a 
 mortgagee can in no case enter, depends on the construction of the Act 
 of 1791; but it seems impossible to deny that the proviso in that Act 
 saves and exempts all cases where the mortgagor is out of possession 
 from its operation. It is said that it is unreasonable that the mortgao-ee 
 should be debarred from entering upon the mortgagor himself, but 
 allowed to enter on his assignee. There is nothing unreasonable in it, 
 however, and it is in strict accordance with the idea of the Legislature, 
 which was to regard the equitable rights of the mortgagor and 
 ^mortgagee. As between them, it is the money which is due, and r^.o^ 
 the mortgagee should sue on his bond. But when a stranger has L 
 got into possession there is no equitable consideration at all between him 
 and the mortgagee. Lord Mansfield would not allow a tenant to set up 
 a title in trustees, when the plaintiff's action was not meant to disturb 
 the possession of those trustees. Bristow v. Pegge, 4 Cow. 309 ; 1 John. 
 Rep. 758, note. Though the Court of King's Bench has since discoun- 
 tenanced these cases, it must be confessed that they rendered the action 
 of ejectment more useful, and subserved the ends of justice better than the 
 old rules which the judges have re-established. At all events there is no 
 reason why the Legislature should not give the preference to the more 
 liberal form of procedure ; and by confining the mortgagee to his bond 
 when the question is between him and the mortgagor, and leaving him 
 to his right of entry, according to the terms of the mortgage deed, when 
 the controversy is between him and a stranger ; they have followed Lord 
 Mansfield's leading, and made the leading action conform to the equita- 
 ble right. 
 
 But that Mr. Williamson was entitled to the rents, is proved by this, 
 that the case disclosed by his bill was sufficient to ground an order for a 
 receiver. If the Act of 1791, does not prevent him from entering, he is 
 a mortgagee in possession. If it does, then he is like a second mort- 
 gagee, who is entitled to a receiver, simply because he has no right of 
 entry ; Berney v. Shell, 1 Jac. & Walk. 647. " If the person in pos- 
 session of real estate, which is assets, has, in his answer, stated the cir- 
 cumstances to be such that the Court cannot help seeing that it must 
 become responsible to the demand, the Court will, in the first instance, 
 put a receiver in the estate;" 8 Ves. 71 ; Angel v. Smith, 1 Ves. 338. 
 It is often granted on the filing of the bill, that is obtained at a suit of 
 creditors, 1 Cox. 422 ; Jones v. Claughton, Jacob, 573. In favor of a 
 tenant in common against his companion ; Street v. Anderton, 4 Bro. C. 
 C. 414. In the case of partners ; Peacock v. Peacock, 16 Yes. 49. And 
 against the legal title, Lloyd v. Passingham, 16 Ves. 59. And in the 
 ease of a second mortgagee ; Berney v. *Shell, 1 Jac. & Walk, p^gg 
 647. When a receiver is appointed, if the land is in the posses- 
 sion of tenants, they must pay their rents to him upon being served with 
 the order. When the owner is in possession himself, the course is to 
 apply to the Court, that the owner may deliver possession to the receiver; 
 Griffith V. Griffith, 2 Ves. 401 ; Wilkinson v. Colley, 5 Bur. 2094. 
 
 Preston, for the defendant, in reply. 1. Can Brooks' mortgage be set 
 up in favor of the plaintiffs ? In the discussion of this question, all those 
 incidentally connected with it will be considered.
 
 332 SOUTH CAROLINA EQUITY REPORTS. [*488 
 
 It is not matter of common right, that one, by paying the debt of 
 another, can become his creditor. His substitution in the place of the 
 creditor is an exception to the ordinary rules of the law ; and even where 
 one is compelled to pay another's debt, he may not be remitted to the 
 creditor's rights. As where the goods of a stranger having been dis- 
 trained on the premises for rent in arrear, and he pays the rent in 
 order to release his goods, he may maintain an action against the tenant 
 for money paid, which is a mere personal demand ; but can he be remitted 
 to the rights of the creditor — the right of distress ? The broad propo- 
 sition, then, that one may pay the debt of another, and thus make him a 
 debtor, is too monstrous to be sustained. But it is contended that the 
 payment being made by mistake, entitles the plaintiffs to the benefit of 
 the mortgage. The rule laid down in Sugden, 181, is that, generally, 
 mistakes in a deed or other contract in writing will be relieved against as 
 between the contracting parties. It does not declare that the party 
 paying shall be remitted to the rights of the creditor ; and none of the 
 cases cited sustain the position, that the mere mistake of one of the par- 
 ties will not confer that right — the mistake must be mutual — unless there 
 be privity in law or fact between the parties. The case cited from 1 
 John. Ch. 607, was that of a guardianship bond payable to the People, 
 when it should have been to the infant; and that in 2 Atk. 203, was the 
 *1SQ1 "^^"^^ of a mistake in drawing a deed contrary to the intention* 
 -" of the parties. These are cases of mistake in form. Hunt v. 
 Kousemanier, 8 Wheat. 211, does not decide the question of mistake in 
 law — it is expressly reserved. The case of Campbell & Chambers v. 
 Rochelle, 1 M'C. Ch. 53, was that of a mere mistake of a ministerial 
 officer charged with the execution of process. There is a difference 
 between ignorance and mistake. The first implies a want of information, 
 which is accessible to the party, and which, by industry, he might have 
 obtained ; and the latter implies false information communicated to him. 
 but here there is neither. Shultz forbid the sale, and informed them that 
 the title was not good. But to entitle a party to relief on the grounds 
 of mistake in law, the mistake must be mutual — this was not the case here, 
 for the sheriff was the agent of both parties, and he was fully notified of 
 both the law and fact ; and Shultz having forbid the sale, cannot be 
 bound by it. In Lowndes v. Chrisholm, 2 M'C Ch. 455, there was a 
 mutuality of mistake, and there was privity between the parties; the 
 surety there was compelled to pay in consequence of his obligation. 2 
 John. Ch. 554; 4 John. Ch. 123 ; 4 John. Ch. 550, and 1 Eq. Rep. 409, 
 were cases of payment by securities, and they were held to be entitled to 
 be remitted to the rights of the creditor ; and in the case from 1 John. 
 Ch. 580, the question was whether the delivery of a mortgage was an 
 assignment, and it was held to be so. In all those cases where the par- 
 ties claimed and were allowed subrogation, they were under legal obliga- 
 tions to pay the debts — there was no such obligation here. Williamson 
 was under no obligation to pay for the purchase, for there was no 
 authority to sell. He has paid the money on this sale without any legal 
 obligation to do so. He was a mere volunteer, acting with full notice, 
 wilfully trusting to his own judgment, and should abide by the conse- 
 quences of his own folly. 
 
 From the views here presented, the plaintiffs are not entitled to be
 
 *489] COLUMBIA, JANUARY, 1834. 333 
 
 subrogated or substituted to a right of action, or lien, as against Slmltz • 
 and, a fortiori, tbey cannot be against the lotholders. But concede 
 Shultz's liability, and that the liens may be set up as against him, the 
 question is different* as to his purchasers. Brooks received the 
 money and made an entry of satisfaction on the mortgage, and L *"^ 
 after this some of the tenants purchased. If Brooks came by the money 
 in mistake, the entry of satisfaction was no mistake. It is an abro"-a- 
 tion of the security of the lien, and the Court will not set it up as against 
 bona fide purchasers. But should the Court remit the plaintiff to Brook's 
 rights, they will be made to account for all losses sustained by William- 
 son's interference. If his conduct has operated to their prejudice and 
 reduced their rents, or if he has been the means of their losing their 
 rents, he should redress them ; for the Court in setting up an equity will 
 take care that equity shall be done by the party in whose favor it is 
 set up. 
 
 At sheriff's sales there is no warranty. A purchaser is not bound to 
 look into the regularity of the sale ; but he must, at his peril, see that the 
 sheriff has authority to sell, and if he fail to do so, and there is a want of 
 such authority he must abide the consequences. Where a purchaser at 
 sherifiTs sale fails to recover, for want of authority in the sheriff to sell, 
 has. he the right to set up the judgment or execution ? There are many 
 such cases, but none can be found where the purchaser has been remitted 
 to the rights of the creditor — at most he can only maintain an action to 
 recover it back. Is not a sale under a mortgage an order of foreclosure, 
 subject to the same rules ? 
 
 It is admitted, that according to the authority of Durand v. Isaacs, 4 
 M'C. Rep. 54, the Court of law had no right to foreclose, except as 
 regards the lots of which Shultz was in possession. The mistake was in the 
 order, and the plaintiffs have no right to go beyond the sale, and to obtain 
 relief on the ground that the Court of law exceeded its jurisdiction, for 
 this would be to affect the rights of third persons, which the Court will 
 take care to guard against in making substitution. If, then, the sale 
 should be made good, it can only extend to the unsold lots, and the mis- 
 take can only be corrected that far ; for otherwise, Williamson, by making 
 a purchase at a sale which is void, acquires more rights than if the sale 
 had been good 
 
 *But it is contended for the complainant that Williamson was . ^tni 
 the assignee of the mortgagee in possession. Equity will regard ^ 
 as done what ought to have been done— but can Equity make that 
 assignment in such way as to operate nunc 2:)ro tunc? If however that 
 is done the complainants are not entitled to rents and profits. In England 
 lands are not liable to sale on execution, they may be extended, and there 
 all mortgagees and judgment creditors are entitled to the rents and 
 profits. And a receiver has been appointed when by descent the title 
 was cast on an infant, 1 Cox. Ch. 433. But the reason being different 
 here a different doctrine must prevail. By the decision in Durand r. 
 Isaacs, the words of the proviso in the Act of 1791 must be applied to 
 the first clause, and when so applied the same meaning must be preserved 
 in its modification of all the other clauses. The words " out of i)Osses- 
 sion" mean a want of actual possession. The intention of the Act was to 
 declare the rights of the parties — that the mortgagor was still the owner
 
 334 SOUTH CAROLINA EQUITY REPORTS. [*491 
 
 of the land, and the mortgagee of the money lent ; and this is still more 
 manifest by the explanatory of 1797, (2 Faust 157) 
 
 As regards the appointment of a receiver. This is in a great measure 
 discretionary with tlie Court, but the Court will be cautious of interfering 
 with the rights of prior claimants, Jeremy. Eq. 248. The purchasers 
 are in possession claiming the legal title, and under the circumstances the 
 Court would not undertake to decide the legal right, and appoint a 
 receiver. 
 
 As to Snowden's mortgage. It is conceded that most of the cases of 
 standing by and permitting another to purchase, are cases of concealment. 
 But the principle is applicable to this case. — The fraud practised on the 
 purchaser is the ground of the rule ; Sugd, 522 ; Tarrant v. Terry, 1 
 Bay, 239. If one stand by and permit another to buy, or build upon 
 his land, he will be concluded from asserting his right; and if he en- 
 courage the purchaser, his expressions are stronger than his silence. 
 Snowden was present, an arrangement to satisfy his mortgage was 
 announced in his presence, the purchasers were required to build, and 
 they paid the fee simple value — under these circumstances his lien should 
 *iqoi ^^ regarded *as lost or waived, or otherwise the Court will assist 
 ''-^ in practising a fraud on the purchasers. 
 
 As to the Bridge Bill judgments. Let it be conceded that at law. the 
 plaintiffs would have the right to sell any of the property of either of the 
 parties. Still it is insisted that the fund primarily liable to the payment 
 of the partnership debts has been released. One of the considerations 
 set out in the deed is the liability which B. M'Kinnie was under to pay 
 the debts of the concern : this was a pledge of the property for the pay- 
 ment of the partnership debts. The bridge was ordered to be sold for 
 foreclosure by the decree of the Georgia Court — no sale was made — and 
 the subsequent settlement is a satisfaction of the mortgage. But the 
 complainants paid only fifty cents on the dollar for their incumbrances ; 
 if they are set up, will they be allowed beyond the amount paid for them ? 
 
 As regards the improvements they should be allowed for — when 
 ascertained, they can be deducted from the amount of rents and profits. 
 The alienees having the legal title could have removed their buildings 
 before foreclosure, and no action could have been maintained against 
 them, but if they have permitted them to remain, those benefitted should 
 account for their value. 
 
 Pettigru, in reply. Relief will be extended to those who pay money 
 voluntarily, 1st, when one lends money to a wife to pay for necessaries, 
 he is put in the place of the seller ; 1 P. W. 483 ; 2d, in the case of 
 infants, 1 P. W. 569 ; 3d, where monef is lent to a trustee who expends 
 it for the benefit of the trust estate. 
 
 Brooks put up for sale all that was mortgaged to him, and Williamson 
 became the purchaser of that interest, whatever it was. He is therefore 
 the assignee of Brooks' interest, and is not to be remitted merely to the 
 unsold lots — the mere purlieus of Hamburg. 
 
 Cliancery will grant an injunction to prevent judgment creditors from 
 selling mortgaged lands, 2 Johns. Ch. 125. The Court will interfere 
 whenever it is clear that the estate is liable as assets for the payment of 
 debts, 16 Yes. 59. See also, 3 Atk. 530, . As regards Snowden's
 
 *-192] COLUMBIA, JANUARY, 1834. 335 
 
 consent to the *sale it is witluu the Statute of Frauds. See Pasley 
 
 V. Freeman, 3 T. R. 51. [*-i93 
 
 Blanding. There is no case in which a receiver has been appointed 
 where there is a mere lien which can be satisfied by a sale of the estate. 
 
 The cause was postponed for consideration, and at this Term the 
 Court delivered the following decree. 
 
 Johnson, J. Both parties have appealed from the decree of the Cir- 
 cuit Court, and the grounds stated open for consideration most of the 
 leading points in the cause. I propose to consider them in the order in 
 which they are put down in the brief, beginning with those of the defend- 
 ants, as going more directly to the merits. 
 
 The first and second may be resolved into the general question, whether 
 the mortgage to Brooks and Moore's judgment can be set up as a lien on 
 the Leigh tract of land generally, and more particularly, whether the 
 mortgage can be set up in opposition to the rights of those who pur- 
 chased lots from Shultz before the mortgage was ordered to be foreclosed. 
 ■1. The very able argument of the Chancellor in support of his views of 
 this question, vindicates, very satisfactorily, his order setting up those 
 liens. I will notice, however, some of the arguments which have been 
 urged by the counsel in support of this ground of the motion with great 
 apparent confidence. The most prominent are, first, that Williamson 
 having purchased with notice that the sale was premature and irregular, 
 is not entitled to relief: Secondly, That all that Williamson can claim is 
 to be put in the same situation that he would have been if the sale had 
 been regular and valid, and that according to this rule, he would only be 
 entitled to have the mortgage set up against the unsold lands, because 
 the law Court had no authority to order the foreclosure as to the lots 
 which had been sold. 
 
 1. The general rule very clearly is, that there is no implied warranty in 
 sales made by a sheriff or other ministerial officer in his official capacity, 
 but that applies exclusively to the quality and property of the thing sold. 
 Thus *in a sale made by a sheriff of goods taken in execution, r^ iqi 
 .there is no implied warranty, on the part of the sheriff, that the ■- 
 goods are intrinsically worth anything, or that the defendant has any 
 property in them. He only undertakes to sell the interest which the 
 defendant may happen to have in the goods, in the condition in which 
 they are. But the principle does not apply to cases where the sheriff or 
 other officer assumes an authority where none is given by law. It will 
 hardly be questioned, that if a sheriff induce persons to purchase at his 
 sales, by pretending that he has the authority of law for the sale, when 
 in truth he has not, the purchaser must be without remedy. It is a fraud 
 for which he would be responsible, and the principle ecjually applies when 
 he acts upon a void authority. In any case the sheriff is bound to show 
 that he is legally authorized to do that which he assumes to do virtule 
 officii. The case in hand does not entirely depend even on that rule. 
 In his deed to Williamson, the sheriff recites the order of foreclosure of 
 Spring Term, 1827, the sale on the first Monday in June, thereafter, and 
 the failure of the purchaser to pay the purchase-money according to the 
 terms of the sale, the advertisement of the subsequent sale, and the sale
 
 336 SOUTH CAROLINA EQUITY REPORTS. [*494 
 
 to Williamson — and in pursuance thereof he undertakes to convey. Here 
 there is an express declaration on the part of the sheriff of his authority 
 to sell, and although it is stated by way of recital, he is as effectually 
 estopped as if it had been in the form of an express covenant. Com. 
 Dig. Estopel, B. 5. Buller N. P. 298. In effect it is a covenant on the 
 part of the sheriff that he has authority to sell, and the same thing is im- 
 plied in every sale he makes. Conceding, then, Williamson had notice of 
 the circumstances from which the want of authority to sell has been 
 deduced in the case of Williamson v. Farrow, here is the guaranty of the 
 sheriff against the consequences. One of two persons who are equally 
 confident of their title to the same article of property, undertakes to sell 
 it to a third who knows all the circumstances, and covenants to warrant 
 the title — did any one ever yet suppose that he would not be bound by 
 that warranty. In principle this is that case. The sheriff, supported by 
 j^ -, *Brooks the mortgagee, undertook to sell the land ; Shultz denied 
 J their authority, on the ground that the time for the payment of 
 the money had not passed. Was Williamson obliged to sit in judgment 
 on this controversy, and decide at his peril ? Might not the sheriff cove- 
 nant for his authority to sell ? And is he not bound ? 
 
 2. The authority of the Law Court to order the foreclosure of mort- 
 gages on lands is derived from the Act of 1791, and in that Act there 
 is an express proviso, that nothing therein contained shall extend to any 
 suit or action then pending, "or where the mortgagor shall be out of pos- 
 session." But this I regard as wholly unimportant to this branch of the 
 case. The complainants do not ask to have Williamson's purchase carried 
 into effect. That was adjudged against him in Williamson i'. Farrow — 
 he took nothing by the purchase. But upon the principle before laid 
 down, they have the right to ask to be reimbursed the sum which William- 
 son paid. It is money paid on a consideration which has wholly failed, and 
 upon the plainest principles of common sense and common honesty, they 
 are entitled to recover it back. Primarily the sheriff is liable, because it 
 was he who received the money and guaranteed his authority to sell. 
 Upon the same principle Brooks too is liable, for the sheriff acted under 
 his authority and for his benefit, and paid the amount of the mortgage to 
 him. It seems also that Brooks received it in the capacity of Commis- 
 sioner in Equity, and in his answer he states that he had paid it over to 
 the persons entitled, and against them he has an unquestionable remedy. 
 The same thing may be said of the amount paid on Moore's judgment, 
 and the object of this bill is not as the argument supposes — a claim on the 
 part of the complainants to be subrogated to the rights of the mortgagee 
 and the judgment creditor, but that the multiplicity and circuity of action 
 which would be necessary in a Court of Law may be avoided and justice 
 done to all the parties at once, that the lands may now be sold to satisfy 
 the mortgage and judgment, in relief of the mortgage and judgment 
 creditor — and it may be asked what wrong is done to the defendants by 
 *49ri ^^^^ Qiode of *proceeding. In the end the money due on the 
 -^ mortgage and judgment must be paid, and that is all that is 
 claimed now. 
 
 Tlie third and fourth grounds of the defendants' motion call in ques- 
 tion the legality of the order of the Circuit Court setting up the judg-
 
 *496] COLUMBIA, JANUARY, 1S34. 337 
 
 merits on the Bridge Bank Bills assig^ned to the plaintiffs, partifiilarlv in 
 opposition to the rights of the lot-owners who purchased from Shuhz. 
 
 The argument in support of these grounds assumes that these judg- 
 ments were a lien on the Bridge at the time the defendants (the lot 
 owners) purchased from Shultz, and that the release of it by Paul Fitz- 
 simons, operated as a fraud on them, as it operated to exempt a fund pri- 
 marily liable, and threw the burthen on the individual property of Sliultz. 
 
 If this assumption was supported by the facts, I should be inclined to 
 think with the defendants' counsel, that the judgment creditors ought to 
 be left to their remedy against that fund, or having released it, they are 
 without remedy. The judgments were for parnership debts. The Bridge 
 according to this allegation was partnership property and liable to the 
 judgments. The defendants, the purchasers of lots from Shultz, claim 
 that the judgment creditors may exhaust that remedy before they resort 
 to the property purchased by them, I need not resort to authority to 
 show that a judgment creditor will be compelled to resort to the property 
 of the debtor to satisfy his judgment in relief of property purchased from 
 him by a stranger ; and this is, as I understand it, the case made l)y the 
 facts assumed. They are not however supported by the proof. 
 
 The property in the Bridge was in John and Barna M'Kinnie, who 
 constituted at that time the Bridge Company. They mortgaged the 
 Bridge to the Bank of Georgia, on the 10th June, 1819, to secure the 
 payment of $98,000; and on a bill filed in the Federal Court at Savannah 
 to which the judgment creditors and Shultz, the Bank of Georgia and 
 John and Barna M'Kinnie, were parties — an order was oljtained by con- 
 sent that the Bridge should be sold and the money brought into Court. 
 On the 28th Nov. 1822, it was accordingly sold, and purchased by the 
 Bank at $70,000, being $28,000 less *than the amount of their r-^..^^^ 
 mortgage, and the proceeds were, by the order of the Court, ^ 
 deposited in the Bank. That bill was afterwards dismissed for want of 
 jurisdiction, but if the Bridge Company had at that time any property in 
 the Bridge, it was divested by the sale. If we are referred to the fund 
 in Bank arising from the sales of the Bridge, that is swallowed up by the 
 prior lien of the mortgage. 
 
 An entry made in the books of the Bridge Bank, pledging the Bridge 
 amongst other things for the redemption of the bills issued by the Bank 
 and on which these judgments are founded, is set np by the defendants 
 as a lien on the Bridge, as paramount to the mortgage, being anterior in 
 point of time. This is well answered in the Circuit Court decree. There 
 was no evidence that the Bank of Georgia had any notice of this entry. 
 In itself there was nothing to divest the Bridge Company of the property 
 in the Bridge. Conceding that it possessed all the requisites of a legal 
 and binding contract, from the nature of it, the right and power of the 
 disposition of the Bridge must have been reserved to the Bridge Com- 
 pany; for that was the only mode in which they could make it avaihable 
 in the payment of the bills, and they alone are responsible for the dis- 
 position they made of the proceeds. The sums paid to Shultz and 
 Fitzsimons cannot be otherwise regarded than as the price of peace. 
 The sum received by Fitzsimons wa^ properly ordered to be credited on 
 the judgments. It was paid on that account, and although by a stranger, 
 supposing it even voluntary, it is j;ro tanto a satisfaction. 
 Vol I.— 22
 
 338 SOUTH CAROLINA EQUITY REPORTS. [*497 
 
 The fifth and sixth grounds of the defendants' appeal, object to the 
 amount and disposition of the rents made in the Circuit Court decree, 
 and may be conveniently considered in the same general view. 
 
 At the common law there is no question that as mortgagee, Brooks 
 was entitled to the possession of the laud after the condition of the mort- 
 gage was broken, or that he might have maintained a possessory action 
 against the mortgagor or any one else in possession, and was entitled to 
 enter upon a vacant possession ; and if a mortgagee give notice to the 
 tenant in possession, that the money secured by the mortgage has 
 ^ -, *not been paid, the tenant is bound to account with him not only 
 -J for the accruing rents but for the rent in arrear ; and the mort- 
 gagee may resort to the summary remedy by distress, and in Moss v. 
 Gallimore, Doug. 270, Lord Mansfield says, that he considers "this 
 remedy a very proper additional advantiige to mortgagees, to prevent 
 collusion between the tenant and the mortgagor." Thus stood the com- 
 mon law, and according to this rule there is no question about Brooks' 
 right to receive the rents after notice to the tenants that the money due 
 on the mortgage was unpaid. 
 
 We are next to inquire whether the Act of Assembly of 1191, has 
 made any change in the common law in this respect. That act seems 
 to have been intended principally to give jurisdiction to the Law Courts, 
 to enable them in a particular case, (the case where a judgment had been 
 obtained against the mortgagor by a third ])erson,) to foreclose the mort- 
 gage and bar the equity of redemption. I3ut it goes on to declare, that 
 "the mortgagee shall not be entitled to maintain any possessory action 
 for the real estate mortgaged, even after the time allowed for the payment 
 of the money secured by the mortgage is elapsed, but the mortgagor 
 shall be deemed the owner of the land, and the mortgagee of the money 
 lent or due;" and then follows a proviao, that nothing therein "con- 
 tained shall extend to any suit or action then pending, or when the 
 mortgagor shall be out of possession." A doubt has been thrown out, 
 whether this proviso extends to the declaration, that " the mortgagor 
 shall be deemed the owner of the land," and hence it was intended to be 
 concluded, that the mortgagee could in no instance and under no circum- 
 stances maintain a possessory action, and could not therefore be entitled 
 to rents and profits. The proviso follows the declaration in the same 
 clause, and I cannot conceive of language more appropriate than that 
 used to express the idea that not only that declaration, but the whole act 
 should be inoperative when the morgagor was out of possession. And it 
 has received that construction in the case of Durand v. Isaacs, 4 M'C. 
 54, in which it was ruled that the Law Court had no jurisdiction in cases 
 of mortgages when the mortgagor was out of possession ; and Judge 
 *4991 ■^°^^' "^ delivering the judgment of the Court in that *case, has 
 given the most satisfactory reasons why the exception ought to 
 have been made. I take it therefore as clear, that Shultz the mortgagor 
 being out of possession, the rights and powers of Brooks as mortgagee, 
 in respect to the purchasers of lots in possession under Shultz, must be 
 determined according to the rule of the common law, and according to 
 that he had a right to receive and retain the rents, having given notice 
 of the mortgage to the tenants in possession.
 
 *499] COLUMBIA, JANUARY, 1834. 339 
 
 The question then arises whether Williamson and the plaintiffs his 
 representatives, are entitled to the same rights and immunities. 
 
 According to the preceding view, as between Brooks the mortgao-ee 
 and the assignees of Shnltz, tenants in possession, the legal estate was in 
 Brooks, subject to the equity of redemption, (a) He had therefore a right 
 to convey the land itself, subject to this equity, or he might have assigned 
 the mortgage, with or without having entered upon and taken possession 
 of the premises. — Matthews vs. Wallwyn, 4 Ves. 118 ; Clute vs. Robin- 
 son, 2 John. R,ep. 612. The sheriff, under the authority and by the di- 
 rection of Brooks, did make a deed, by which he undertook to convey the 
 fee in these lands to Williamson unconditionally ; and although that was 
 a greater interest than Brooks had in the land, the minor interest, whether 
 of the legal estate subject to the equity of redemption, or the right to 
 assign the mortgage whereby the legal estate would pass, was necessa- 
 rily covered by it. In this view the sheriff must be regarded as the pri- 
 vate ageut of Brooks, and not as acting in his official capacity ; and if it 
 be objected that his authority from Brooks was by parol, and void under 
 the statute of frauds, it is an answer, that the facts are admitted by 
 Brooks in his answer to this bill — a confirmation of the act. Williamson was 
 therefore entitled to all the rights of Brooks, and necessarily to the rents 
 
 The seventh and last ground of appeal on the part of *the de- r^rr^r. 
 fendants, complains of error in the decree of the Circuit Court, ^ 
 in not directing the sale of the lots in the order in which they were con- 
 veyed by Shultz, beginning with the last, and proceeding according to 
 the order of the dates, to the first. 
 
 The counsel for the complainants have consented to a modification of 
 the decree, according to this suggestion. I do not regard it however as 
 depending entirely on the concession of counsel. As between the com- 
 plainants and defendants the whole is equally liable, but amongst the 
 defendants themselves, there is an equity which ought to be kept in view. 
 Knowing of the mortgage and judgments, the first purchasers must neces- 
 sarily have looked to the residue of the land as a security for the satisfac- 
 tion of them. Every subsequent purchase diminished the amount of this 
 security, and operated as a fraud upon the first purchasers. 
 
 I shall now proceed to notice the grounds of appeal taken on the part 
 of the complainants. 
 
 1. The order that the land shall be sold on a credit of twelve months, 
 as to three-fourths of the purchase money, is complained of as a violation 
 of the obligation of contracts. 
 
 This order is in conformity with the practice of the Court of Chancery, 
 both in this country and England. In the Act of 1791, before referred 
 to, authority is expressly given to the Law Courts to give time for the 
 payment of the money due on the mortgage, and a credit on the sales. It 
 is founded, as I understand it, upon the principle of Equity, that the 
 mortgagor has a right to redeem, at any time, until he is bound by the 
 presumption arising from lapse of time, according to the construction 
 
 (a) But see the opinion of the Court delivered by Johnson, J., in Smith and Cuttino 
 V. Osborne and others, ante, 342, where the reason given why the Statute of Limi- 
 tations should not bar a mortgage lien, is that the le^al estate is not in the mortgagee, 
 even where (as in that case) the mortgagor was " out of possession."
 
 340 SOUTH CAROLINA EQUITY REPORTS. [*500 
 
 of tlie contract, he has the right to redeem at an indefinite period, and it 
 follows necessarily, that a sale on a limited credit is no violation of the 
 obligation of that contract. I think also that it might be justified on 
 the footing of a lex fori, for its use is universal, and co-existent with the 
 Courts of Chancery over mortgages. 
 
 2. Notice to the creditors of Shultz to come in and prove their de- 
 mands has been already twice given — once according to the answer of 
 ^_„,-, Boyce, by the Commissioners appointed* under the order of the 
 
 -' Court, and once under the order of the Court, and I have heard 
 no suggestion that there are any yet to come in ; and I presume that the 
 order for the publication of further notice, and allowing time for them 
 to come in, was made through abundant caution, and without the 
 knowledge of the fact that notice had already been given. If there are 
 other creditors, it is their own fault that they have not come in and 
 proved their debts. They are not therefore entitled to the indulgence 
 of the Court, nor ought the complainants to be longer delayed on that 
 account — in this respect therefore the decree must be reformed. 
 
 3. The decree of the Circuit Court directs that the rents of the lots 
 which have been sold by Shultz and improved by the purchasers, should 
 be so apportioned that Williamson's executors should take only the 
 ground rent ; and by the complainants' third ground, it is understood 
 that they claim to be entitled to the rents, as increased by the improve- 
 ments. 
 
 There is apparently much equity in this order, and I am disposed to 
 think it may be vindicated upon principle. There was no obligation on 
 the part of Shultz to improve the lots, nor were the purchasers from him 
 bound to do it. The mortgagee was, by the contract entitled to the 
 land and the rents accruing from it, in the condition it then was, and no 
 more. The improvements made did not diminish, but increased the value 
 of the rents, regarding them merely as ground rents, and according to 
 the principle of the order, the executors of Williamson are allowed this 
 increased value. In doing justice to the lot-owners, even more than strict 
 justice is meted out to Williamson's executors. 
 
 4. The fourth and last ground is conceded by the counsel for the de- 
 fendants — so much of the decree therefore as directs that Breighthaupt 
 shall account for the $5000 which he received under the order of the 
 Federal Court, must be reversed. 
 
 It is therefore hereby ordered and decreed, that so much of the decree 
 of the Circuit Court as directs that the Commissioner shall advertise in 
 the gazettes, for all the creditors who have not done so, to render in 
 their demands by a day fixed by him — and so much thereof as directs a 
 *502l ^*^'f^^6nce to ascertain* whether Breighthaupt received the sum 
 -^ ordered to be paid to him by the Federal Court, and what dispo- 
 sition he made of it, and what proportion of it should have gone to the 
 credit of those judgments ; be and the same is hereby set aside and 
 reversed. 
 
 And it is further ordered and decreed, that in executing the order for 
 the sale of the Lehigh tract of land, the Commissioner do first sell the 
 lots and lands whereof Henry Shultz was seized at the time he was 
 admitted to the benefit of the " Act for the relief of insolvent debtors," 
 the lots separately, and the lands not divided into lots, either in a body or
 
 *502] 
 
 COLUMBIA, JANUARY, 1834. 341 
 
 in parcels as he may judge most beneficial to all concerned ; and next 
 lots in the hands of purchasers, or so many thereof as may be necessary 
 for the payment of all the liens established by this decree — reserviii"- to 
 Shultz's alienees the right of priority amongst themselves accordin"- to 
 their deeds — the lots held by subsequent deeds to be sold before those 
 held by prior deeds, and when two or more deeds have the same date, the 
 Commissioner shall himself determine the order in which the lots slniU 
 be sold, reserving to the owners of the lots sold, the right of contribution 
 from the owners of lots that it may be unnecessary to sell, if such should 
 be the case. And to enable the Commissioner to carry this order into 
 effect without delay, he is hereby authorized to require the owners of all 
 lots to exhibit their title deeds or other muniments before him, at such 
 times as he shall appoint — and if any difficulty should arise as to the 
 order of the dates of the deed, he will report the same to the Circuit 
 Court. 
 
 And lastly, it is ordered and decreed, that the decree of the Circuit 
 Court, so far as the same is not inconsistent with this decree, be, and the 
 same is hereby affirmed. 
 
 O'Neall and Harper, Js., concurred.
 
 INDEX. 
 
 [The folios in this Index refer to the * folios. The syllabus formerly appeared as side-Dote^, which we 
 have collected and placed at the commencement of cases. Therefore, when the Index refers to a folio, 
 the text will be found at the * folio, and the syllabus at the beginning of the case.] 
 
 ABATEMENT. 
 See Tenant for life, 3. 
 ACCOUNT. 
 1. A defendant who, in his answer, praj'S an account from the plaintiff, is 
 bound to render an account of any moneys due to the hitter, iilthough the 
 bill does not pray an account against him. Terry, AdnCr, v. Hopkins et als.. 9 
 See Agreement, 2. Hike, 1, 2, 3. Voluntary Conveyance, 3, Execu- 
 tors AND Administrators, 5. 
 
 ADMINISTRATORS. 
 See Executors anl» Administrators. 
 ADVANCEMENT. 
 1. The doctrine of advancements applies solely to cases of intestacy. Newman 
 
 and Wifey. Wilbourne et als 11 
 
 AGREEMENT. 
 
 1. An agreement to be sustained and specifically enforced as a bar to the plain- 
 
 tiff's equity, must be fair, just, reasonable, mutual, and founded on a good 
 
 or valuable consideration. Cabeenv. Gordon 56 
 
 2. But an ngreement wanting some of these requisites, may avail the defendants 
 
 so far as to prevent the account from being carried beyond the filing of 
 the bill, lb 57 
 
 AMENDMENT. 
 
 See Pleading, 1. Limitations, Statute of, 4. 
 
 ANNUITY. 
 
 1. Where the testator bequeathed an annuity to be paid on the first of March 
 
 in every year, and he died in September: it was held, that the legatee, on 
 
 the first of March after the testator's death, should be paid a proportion of 
 
 the annuity, equal to the time which had run after his death. Waring 
 
 Bjc'or, V. Purcell, Ex'trix 1"" 
 
 APPEAL. 
 
 1. On questions of fact, the concurrence of the Commissioner and Chancellor, 
 
 is generally decisive with this Court. Cabeenv. Gordon, • 58 
 
 2. The credibility of witnesses is a question for the jury on the trial of an issue 
 
 at law. Lylesv. Lyles, Adm'r _• ;• '' 
 
 3. That the presiding Judge had expressed to the jury bis opinion of the evi- 
 
 dence, is not a ground for a new trial. lb .■■."" 
 
 4. On doubtful questions of fact, the Court will not interfere with the decision 
 
 of the Commissioner and Chancellor. lb ^'■ 
 
 5. Costs are so much under the control of the Chancellor, that they are not, of 
 
 themselves, regarded as the subject of appeal; it is only where the Appeal 
 Court reforms or reverses the Circuit decree, that it will reverse or modify 
 an order on the subject of costs, lb ^2
 
 344 INDEX. 
 
 6. According to the practice of this Court, if a party except to the Commis- 
 
 sioner's Report, anil some of his exceptions are sustained and some 
 overruled, and the case is sent back by the Chancellor to the Commis- 
 sioner, he may at once appeal to this Court, or wait until there is a final 
 decree of confirmation, and then bring up the whole case. Sinclair and 
 Kiddle v. AdmWs of Price, 444 
 
 7. By the Act of 1808, a party hixs the right to appeal "from any order or 
 
 decree of any Judge presiding on the Circuit," •whether it be interlocutory 
 
 or final Price, E£or,v. Nesbit, 453 
 
 8. Wliere there has been no final judgment in a cause, a party may on appeal 
 
 examine the whole case, and open for consideration all prior or interlocu- 
 tory orders or decrees any way connected with the merits of the decree 
 from which he has appealed; and this too notwithstanding such orders or 
 decrees may have been affirmed by the Appeal Court. lb 453 
 
 9. So long as a decree operates merely as authority, or as the reasoning of the 
 
 Court to prove the party's right in whose favor it is pronounced, it may be 
 reviewed and reversed whenever it comes up properly before the Court of 
 
 Appeals in any of the subsequent stages of the case, lb 459 
 
 See Issue at Law. 
 APPEALS (COURT OF). 
 
 1. Decree of the Appeal Court when examinable. Price, Ex' or, v. Nesbit, 453 
 
 2. A Circuit decree affirmed by the Court of Appeals, if it is a final decree, can 
 
 never again be examined, either on appeal, by bill of review or on a re- 
 hearing; but if it merely establishes a general right of recovery and leaves 
 the extent of the recovery to be afterwards ascertained, if it does not end 
 the controversy, but still leaves something to be done to enable the Court 
 to pronounce judgment, it is examinable on an appeal from a final decree. 
 
 lb 457 
 
 See Issue at Law, 2, 3. 
 ARBITRATORS. 
 
 1. Where a trustee has been legally compelled to pay money, as the surety of 
 his cestui que trttst, in Equity the trust estate will be charged with the 
 amount paid; and where the trustee and the principal debtor being devisees 
 of tlie estate, with the other parties interested, referred all their "claims, 
 rights and interest in said estate" to arbitration, and the arbitrators 
 awarded a portion of the share of the principal to the trustee, in payment 
 of the money advanced by him as secur.ty, it was held, that the arbitrators 
 had not exceeded their authority, and the award was confirmed. Perkins 
 el als. V. Kershaw et als 349 
 
 ASSETS. 
 
 1. A wife, being entitled to a life estate in certain negroes, had them settled to 
 
 her separate use bj' marriage settlement which had no schedule annexed 
 and was not recorded; the husband died, the wife surviving, who adminis- 
 tered on his estate, received her portion of it, married a second time, and 
 died: on a bill filed by the creditors of the first husband against the second 
 husband, it was held, that the life estate of the wife in the negroes, was 
 not assets for the payment of the debts of her first husband, and his cred- 
 itors were not entitled to an account far their possession by the wife after 
 the death of her first husband. Fripp v. Talbird 143 
 
 2. The testator, by his will, directed his debts to be paid out of the debts due 
 
 him. and gave certain specific legacies, and then devised the residue of his 
 estate to his sister for life, remainder over, &c., and died in September, 
 leaving a crop on his plantation: — Held, that the crop growing on the land, 
 and which was severed before tlie last of December, was assets in the hands 
 of the executor, for the payment of the debts and pecuniary legacies. 
 
 Waring, Ez'or, v. Purcell, Ex.' trx, 196 
 
 See Debtok and Ckeditor, 1.
 
 INDEX. 345 
 
 ASSIGNMENT. 
 
 1. Where an insolvent debtor rendered in a schedule of his estate, in which was 
 
 included a bond on the defendant's intestate, and was discharged according 
 to law, but inadvertently omitted to execute an assignment of the schedule. 
 — Held, that under such circumstances, this was a good equitable assign- 
 ment of the bond, which a Court of Equity would set up and decree on ; but 
 that the insolvent or (in case of his death) his legal representative, should 
 be made a party to the bill. White and Hunt v. Follin and u-ifc, 187 
 
 2. An assignment by a debtor to a trustee, in trust, first to pay existing liens; 
 
 second, to pay his sureties whatever sums they might have to pay for his 
 default as Commissioner in Equity; third, to pay the balance to such of 
 his creditors as should exhibit their demands within a year, and agree in 
 writing to take a dividend of the surplus; is valid. Vaughan et ah. v. Evans 
 et als 430 
 
 3. A sale and conveyance of land by the sheriff, in pursuance of an order from 
 
 the Court of Law for the foreclosure of a mortgage, when the mortgagor 
 was out of possession, although void as official acts, for the want of author- 
 ity in the Court of Law to make the order, will still operate as an 
 assignment of the legal estate of the mortgagee. The sheriff will be re- 
 garded as the private agent of the mortgagee, and although his authority 
 be only by parol, the answer of the mortgagee admitting the facts, is a 
 sufficient compliance with the Statute of Frauds. Stoncy et als. v. Shultz 
 et als 499 
 
 AWARD. 
 See Aebitrators. 
 BILLS OF EXCHANGE AND PROMISSORY NOTE'S. 
 See Surety, 1. Evidence, 2. 
 
 BONDS. 
 
 1. The penalty of a bond, conditioned for the payment of money, is to secure 
 payment of the whole of the condition, and any part of it remaining unpaid 
 is a forfeiture of the penalty — therefore the obligee may recover the balance 
 of the condition with interest thereon, although that sum when added to 
 the payments previously made would exceed the penalty. Smith and 
 Cuttino V. Macon, Adm'r, .339 
 
 See Assignment, 1. 
 CASES PARTICULARLY REMARKED UPON, DOUBTED, OR EX- 
 PLAINED. 
 
 1. Seabrook ac/s Williams, 3 M'C. 371, explained, 30 
 
 2. Gough V. Walker, 1 N. & M'C. 4G9, explained 108 
 
 3. Lowndes v. Chisolm, 2 M'C. Ch. 405, and Lawrence v. Beaubien, 2 Bail, 623, 
 
 considered and adhered to, 250 
 
 4. Screven w. Bostick, 2 M'C. Ch. 410, explained, 301 
 
 5. Thayer v. Cramer, 1 M'C. Ch. 395, questioned by Chancellor Johnston 341 
 
 — defended and adhered to by the Court, 3^2 
 
 G. McRa V. Smith, 2 Bay, 339, remarked on, 344 
 
 CHILDREN. 
 
 See Husband and Wife, 1,.4. Will, 14. 
 
 COMMISSIONER (IN EQUITY). 
 
 1. The Commissioner, in making up accounts, must conform to the directions 
 
 of the Court; and if, from any cause, he cannot, he should apply to the 
 Court for fresh instructions. Frazier and wifi; v. Vaiix, Ex'or, 208 
 
 2. Where a Commissioner in Equity who had been re-elected at the expiration 
 
 of his first term, had received moneys during his first term which were 
 not demanded or ordered to be paid over or invested during that term, the 
 securities to his official bond for the first term are not liable therefor, uu-
 
 346 INDEX. 
 
 less it be shown that the Commissioner had wasted, or converted to his own 
 use, the funds in his hands; and in the absence of such evidence, the 
 presumption is that he retained the funds and that they were in his hands 
 
 as his own successor. Vaughan et ah. v. Evans et als 428 
 
 3. But where the Commissioner, by orders of the Court during the first term, 
 was directed to pay over a part of the funds then in his hands, and to 
 invest a part, and neglected to comply with these orders; it was held, that 
 the failure to pay over or invest, was a breach of the condition of the bond, 
 and that the application for such an order was prima facie evidence of a 
 demand, and the sureties to the bond of the term in which the orders were 
 made were liable. Harpee, J., dissenting, held with Chancellor Johnston, 
 that the orders to pay over were only an authority to pay over, and that 
 there was no default until demand made; and that the failure to invest 
 could only make the sureties liable for the interest which would have been 
 made if the funds had been invested. lb 429 
 
 COMMISSIONER'S REPORT. 
 See Practice, 3. Appeal, 6. 
 COMMISSIONS. 
 
 1. A trustee under a deed, who has the management of the estate of a minor, 
 
 is entitled to commissions under the Act of 1745, although he has failed to 
 make returns to the office of the Secretary of State. Muckenfuss v. Heath, 183 
 
 2. An executor is not entitled to commissions for the years in which he has 
 
 failed to make returns ; and such default deprives him also of the right to 
 recover compensation for extra services. Frazier and loife v. "Vaux, Ex'or, 210 
 
 3. A private agent or assignee is not entitled to commissions, unless they are 
 
 stipulated for in the contract creating the agency. Poag, Ex'or, v. Foag, 287 
 
 CONDITION. 
 See Will, 2. 
 
 CONFIRMATION. 
 1, A decree of the Ordinary at the instance of the parties interested, against 
 the administratrix, which includes the price of the negroes purchased by 
 her, at her own sale, is a confirmation of the sale. Price, Ex'or, v. Nesbit, 463 
 
 CONSENT. 
 
 1. The defendant, an executrix, with the consent and approbation of the 
 plaintiff, her co-executor, delivered a bond due to the testator to a legatee, 
 under the belief that the testator so intended ; afterwards the plaintiff 
 discovered circumstances which induced him to believe that they had mis- 
 taken the testator's wishes, and filed a bill for settlement and relief: Held, 
 that the plaintiff, having given his consent to the delivery of the bond, was 
 concluded by it. Waring, Ex'or, v. Pur cell. Ex' trix, 202 
 
 CONTRACT. 
 
 1. A contract for the sale of land made by letter-correspondence between the 
 
 parties is valid, and will be enforced if the consideration to be paid, the 
 time of payment, and a description of the premises, appear therein, suffi- 
 ciently certain to enable the Court to decree a specific performance. 
 Neufvillev. Stuart, 166 
 
 2. The defendant in a letter to the plaintiff's agent, proposed to purchase a 
 
 plantation at eight thousand dollars — six thousand dollars in cash, and two 
 thousand dollars in January following, and requested an immediate answer; 
 the agent, by return post replied, accepting the proposal, but added that 
 he presumed the two thousand dollars were to bear interest from the date: 
 Held, that this was a contract obligatory on the defendant ; and that the 
 suggestion in the letter of acceptance with respect to interest, did not 
 constitute a new and distinct term, which set the contract afloat. lb 167 
 
 3. Allowing credit on a sale of land for the foreclosure of a mortgage, is not a 
 
 violation of the obligation of contracts. Stoneg et als. v. Shuliz et als 500
 
 INDEX. 347 
 
 CONTRIBUTION. 
 
 1. Ou what principles and under -what circumstances contribution will be 
 
 allowed. — To entitle a plaintiff to contribution, he must show that his 
 payment has removed a common burthen from the defendant and himself ; 
 and that defendant has received benefit from such payment. Screven v. 
 Joyner, Ez'or, et als 260 
 
 2. The testator devised a tract of land called " Jasper's Barony," to his sons, 
 
 Benjamin and Thomas, and designated the portions of each ; a large 
 amount of the purchase-money being unpaid, the vendor filed his bill 
 against the executors, and obtained a decree, charging the land with its 
 payment; and by a subsequent decree, it was ordered to be sold: these 
 decrees remained open, and were not enforced for many years ; meanwhile 
 the devisee, Benjamin sold his portion of the Barony, and his purchaser 
 took and held possession, until he acquired a title under the statute of 
 limitations; afterwards the former decrees were revived, and by order of the 
 Court of Equity, the remaining portion of the Barony, being the share of 
 Thomas, was sold to pay the purchase-money ; on a bill filed by Thomas 
 against Benjamin, for contribution: — Held, that as the lien of the vendor 
 under the decrees in Equity, was lost and ended by the statute of limita- 
 tion, the payment of the decree by Thomas, conferred no benefit on 
 Benjamin, and consequently he was not liable to contribution. lb 2G1 
 
 COSTS. 
 
 1. As a general rule, the plaintiff in a bill for discovery is required to pay the 
 
 costs ; but if he asks a discovery from the defendant before filing the bill, 
 who refuses it, and he is compelled to come into Equity, the defendant 
 will not be allowed costs. M'Ehveev. Sutton and Black, 34 
 
 2. Costs not allowed for a defence to a petition in Chancery. Ex parte 
 
 M'Clelland, 412 
 
 3. Generally, where a party makes a single question in a case, and that ia 
 
 decided against him, he will not be entitled to costs; if he make several 
 questions, some of which are decided for. and others against him, he will 
 be entitled to tax costs under a decree allowing them to him. JPinchback 
 v. M' Craven, 413 
 
 4. A charge for copies of opinions of the Appeal Court is admissible, lb 414 
 
 See Appeal, 5. Executors and Administbatoes, 6. 
 
 COVENANT. 
 
 See Sheriff's Sale, 3. 
 
 DEBTOR AND CREDITOR. 
 
 1. Creditors may follow assets in the hands of legatees or distributees and 
 
 compel them to refund: and the property may be followed in the hands of 
 one to whom it has been transmitted on the death of a legatee or distribu- 
 tee; there is no limit to this right except that of time. Fripp v. Talhird.. 144 
 
 2. Where negroes were purchased and paid for by a debtor, and the title made 
 
 to his sons, under the circumstances it was held, that a trust resulted to 
 debtor in favor of creditors, and the negroes were held liable for his debts. 
 Brown tt als. v. M' Donald •• 30G 
 
 3. Order by the Chancellor for the publication of notice to creditors to come in 
 
 and prove their demands reversed, sufficient notice having been previously 
 
 given. Stoncy et als. v. Shultzetals. ^'^O 
 
 See Loan, 1. Voluntary Conveyance. Assignment. Receipt. Trust 
 Estate. Equitable Interest, 1. Fraud. Infant. Jurisdiction, 
 6,7. 
 
 DECREE. 
 
 See Ordinary, Lien. Appeals (Court of), 1, 2. Appeal, S, 9, 
 
 DEED. 
 
 1. P. R. M. a young man of intemperate habits, was prevailed on to execute a 
 
 deed of his property to his mother and brother and sisters, reserving a life
 
 348 INDEX. 
 
 estate to himself, with the understanding on his part, and promises on 
 their's, that the object was to protect his property, and not to deprive him 
 of the right to control and dispose of it by will ; but the deed contained no 
 power of revocation, nor was there any undue influence exercised; P. E. M. 
 afterwards made a will by which he disposed of his property, and died : — 
 Held, that the deed was valid and irrevocable. Ex'ors of Hopkins v. 
 Mazyck et als 242 
 
 DEFENDANTS. 
 1, A Court of Equity may decree between co-defendants, on evidence arising 
 from pleadings and proofs between plaintiflFs and defendants. Molte v. 
 Shulte and Matte, • 1^6 
 
 DEVASTAVIT. 
 See HcsBAXD and Wife, 5, 6. 
 DEVISE. 
 See Will. 
 DISCOVERY. 
 1. Where a bill is for discovery and relief, in a case where discovery is the only 
 ground of Equity jurisdiction, it must be sworn to ; but if the bill is for 
 discovery merely no aflidavit is necessary. AI'£lwee v. Sutton and Black, ... 33 
 See Costs, 1. 
 DISTRIBUTIVE SHARES. 
 1. The defendants (distributees) made individually liable, on a bill for partition, 
 for what they had received over and above their distributive shares, where 
 the administrator was insolvent. Lyles v. LyUs, AdmW 91 
 
 See Vendor and Puechaser. Partition, 1. Debtor and Creditob, 1. 
 
 DIVORCE. 
 See Marriage, 
 EQUITABLE INTEREST. 
 1. The plaintiflF made a shipment on joint account with L., who sold and inves- 
 ted the proceeds in merchandise shipped on board the brig Eliza, and gave 
 the plaintiff a written acknowledgment to this affect ; L. stopped payment, 
 and assigned his estate, including the cargo of the Eliza, to the defendants, 
 as trustees for the payment of certain preferred debts, who sold the same, 
 and applied the proceeds according to the deed ; on a bill filed by the 
 plaintiff against the assignees. Held, that the plaintiff was an equitable 
 owner of the cargo to the extent of his investment, and that if the defend- 
 ants had paid away the proceeds with a knowledge of the plaintiff's 
 equity, they were liable to account to him. — Reference ordered to ascertain 
 whether the defendants had paid away the funds, and if so, whether with 
 
 or without a knowledge of the plaintiff's claim. Plunkett v. Carew, 171 
 
 See Assignment, 1. 
 
 EQUITY OF REDEMPTION. 
 See Mortgage, 2, 4. 
 
 EVIDENCE. 
 
 1. Where delivery of possession is relied on, as evidence of a gift, the subse- 
 
 quent declarations of the donor, will not be competent to vary the legal 
 consequences. Newman and ivife y. Wilbourne, Ex'or, et als 13 
 
 2. Where a note is signed only by the maker affixing his mark, and the sub- 
 
 scribing witness is the executor of the (deceased ) payee, the note cannot 
 be given in evidence on proof of the handwriting of the witness; it must be 
 shown that the note existed before the witness' interest accrued. Lever v. 
 Lever, 68 
 
 3. When the credit of a witness is impeached, by proof that he has made decla-
 
 INDEX. 349 
 
 rations inconsistent with -what he has sworn to : in reply to such evidence 
 proof of his declarations on other occasions, consistent with what he has 
 
 sworn to, is admissible. Lyles v. Lyles, Adni'r yr 
 
 4. The testator by his will, directed the remainder of his estate to be sold, and 
 the proceeds to be equally distributed among his grand-daughters, and adds 
 "I allow my undernamed executors to retain the aforesaid children's parts 
 in their hands, until the children arrive at maturity;" on a bill filed against 
 the executors to account, it was held, that parol evidence was admissible to 
 show that the executors retained the legacies in their bands without 
 making interest on them, in consequence of an agreement with the testator 
 that they should not be bound to invest the fund or make interest, nor be 
 chargeable with interest on their failure to do so ; and that they accepted 
 
 the executorship on that condition. Chesnut and wife et als. v. Slrong 125 
 
 See Trustee, 1. Witness. Principal and Aqent, -3. 
 
 EXECUTION. 
 
 See Insolvent Debtor, 1. 
 
 EXECUTORS AND ADMINISTRATORS. 
 
 1. One legatee cannot compel another to account for a debt due to the estate, 
 
 none but the executor has that right. Newman and wife v. Wilbourne, Ex'or, 
 
 et als 12 
 
 2. Where an administrator, in the course of his administration, on a sale of his 
 
 intestate's property, took a note payable to himself as such, and dies ; and 
 administration de bonis non is granted, although the legal right to the note 
 is in the first administrator, yet the equitable right is in the administrator 
 de bonis non; and if, on a final settlement of accounts, the amount of the 
 note appears to be due from the estate of the first administrator, the 
 administrator de bonis non will be entitled to the possession of the note. 
 Miller v. Alexander, 29 
 
 3. The Court will not discharge an executor from his oiSce. Hahjood v. Wells. 61 
 
 4. The Court of Equity has no power to substitute an executor in the place of 
 
 another; but where an executor has removed from the State, leaving his 
 cestui que trusts and the trust estate, the Court will, on the application of 
 the ces/Mt" ?«« /n<«('s, appoint a receiver. Ex parte Galluchat 150 
 
 5. An executor, in the management of a planting interest, applied the avails of 
 
 the crops to the purchase of negroes for the estate, and worked them for 
 several years on the plantation, and kept regular accounts of the proceeds 
 of each crop ; the investment being unauthorized, the legatee refused to 
 receive the negroes ; on a bill filed against the executor for an account, he 
 was put on the footing of a part owner and held entitled to a proportionate 
 share of the crops, after making allowance for the rent of the land. Frazier 
 and wife v. Vauz, Ex or 206 
 
 6. An executor or administrator who litigates in good faith, will be reimbursed 
 
 out of the estate for his costs and expenses, but the estate he represents, 
 and which is presumed to be benefited by the litigation, must bear the 
 expense. Capchart and wife, et als. v. Adm'rs of Huey ^H 
 
 7. A sale by an administratrix, where the administration was afterwards re- 
 
 voked on a will being admitted to probate, is valid if there be no fraud; and 
 that the administratrix was herself the purchaser does not render the sale 
 void. It can only be avoided at the instance of the legatees and not of the 
 
 executor. Price, Ex'or, \. Nesbit ^"^ 
 
 See Husband and Wife, 3, 4, 5, 6. Jurisdiction, 1, 5. Hire. Ordinary, 2. 
 Commissions, 2. Fraud, 4. 
 
 FEE CONDITIONAL. 
 S«e Merger, 2. 
 
 FEME COVERT. 
 See Husband and Wife. Tenant for life, 3. Recording, -.
 
 350 INDEX. 
 
 FORECLOSURE. 
 
 See Mortgage, 2. 
 
 FRAUD. 
 
 1. The fraud of a third person may sometimes .vitiate a conveyance — a party 
 
 to the conveyance shall not be allowed to derive any advantage from such 
 fraud; but in setting aside such a conveyance, the Court will take care 
 that innocent persons shall not suffer. M'Meekan v. Edmunds and icife, el 
 als 293 
 
 2. It is not indispensably necessary to establish fraud in a deed, that the 
 
 grantor was indebted at the time of its execution, or that it was executed 
 with a view to future indebtedness; it may be avoided by showing that 
 the sale was merely colorable. Broton et als v. McDonald 303 
 
 3. Where the grantor, being indebted, conveyed his land to his mother, fur a 
 
 valuable consideration, which was paid and applied to his debts, and it 
 •was agreed at the time, that he should retain possession of the land during 
 his life, and it should go to his children on his death, and he did bold 
 possession, and the grantee afterwards devised the land to the grantor's 
 children : the conveyance was held to be fraudulent as to creditors, and set 
 aside. lb 304 
 
 4. Where a bill is filed by creditors to avoid the alienation of a deceased person 
 
 for fraud, his executor or administrator is a necessary party; and if the 
 Court should set aside the conveyance, it will order the property to be 
 delivered to the executor or administrator, to be applied in due course of 
 administration. The suing creditors are not entitled to have their demands 
 
 paid out of the property, in preference to others. Brock v. Bowman 338 
 
 See Voluntary Conveyance, 1, 2. Sheriff's sale, 1, 2. Reimbursement, 1. 
 Debtor and Creditor, 2. 
 
 FRAUDS, STATUTE OF. 
 
 See Contract, 1, 2. Assignment, 3. 
 
 GIFT. 
 
 See Evidence, 3. 
 
 GUARDIAN AND WARD. 
 
 1. The Court of Chancery may order the funds of an infant under its control, 
 
 to be paid to a guardian residing and appointed in another State, but in 
 doing so, will take every precaution to guard against abuse and loss to the 
 infant : the Court will, in such case, order a reference to ascertain the fact 
 of the guardian's appointment, his fitness and whether sufficient security 
 has been given. Ex parte Smith 141 
 
 2. Generally those acts of a guardian are binding on the infant which are for 
 
 the benefit of the infant, and for which the guardian can account; he may 
 therefore in a suit brought for the benefit of his wards, execute a release 
 in order to render a witness competent. Capehart and wife, et als., v. The 
 Adnirs of Huey 409 
 
 HIRE. 
 
 1. A trustee who has neglected to make annual accounts will be charged for 
 
 negro Lire, at £10 for full, and £5 for half, task hands. Lyles v. Lylcs, 
 Adrn'r 87 
 
 2. If one obtain possession by force or fraud, and forces another out of the 
 
 administration, he may be held to account at a higher rate ; the rule was 
 intended to apply only to cases where the party stands in an amicable 
 relation as trustee, guardian, executor, &c., and is a substitute for the 
 regular annual account. lb 89 
 
 3. The £10 rule for the hire of negroes, does not apply to a c^se where there 
 
 has been an account kept of the proceeds of their labor. Frazier and wife 
 
 V. Vaux, Ex' or 206
 
 i 
 
 INDEX. 351 
 
 HOTCHPOT. 
 
 See Advancement. 
 HUSBAND AND WIFE. 
 . . Where a widow, before her second marriage, conveys her property to the 
 children of her first marriage, reserving only a life estate in a portion, to 
 herself, and this was known to her intended husband, the conveyance is 
 not a fraud on his marital rights, but is valid. Terry Adm'r, v. Hopkins 
 et ah 4 
 
 2. When a parent gave a slave to his daughter, on her marriage, on condition 
 
 that he should have a right to take him back, on paying his value, or 
 substituting other property; the marital rights of the husband attach, and 
 the right of property vests in him, subject to that condition, and devolves 
 on his administrators, after his death, to the same extent, and in the same 
 condition. lb 6 
 
 3. A husband who has administered on his wife's estate, cannot be reimbursed 
 
 out of it, for payments made by him, during coverture, on a contract of 
 the wife before marriage; hut he will be entitled to credit for any payment 
 on that account, since her death. lb 7 
 
 4. A husband, as the administrator of his wife, will not be allowed to raise an 
 
 account against her children by a former marriage, for her care and trouble 
 in attending to them before her second marriage, and for raising young 
 negroes, when she herself, made no such charges. lb 8 
 
 5. Where administration was granted to husband and wife in right of the 
 
 wife, and the administration bond was signed by both, the wife is not bound 
 by the bond; and after the husband's death, she is not liable for his devas- 
 tavit during the administration; and so much of the estate as remains 
 unchanged is subject to partition between the wife and the other distri- 
 butees, the wife's interest therein surviving to her. But as regards such 
 part of the estate as the husband had wasted, the wife is not entitled to a 
 share thereof — and on a bill filed by the security to the administration 
 bond, against whom a judgment at law had been obtained for the whole 
 estate, relief was granted to this extent, and credit given him on the 
 judgment for her share of so much of the estate as had been wasted. Spann 
 v. Sleivart et ah 332 
 
 6. The husband (or if he be dead, his administrator) is accountable for the 
 
 funds of the wife's intestate which have come into his or her hands during 
 coverture, and which may not be left in specie at the husband's death and 
 go into the wife's possession. Capehart and wife, et ah., v. Adm'rs of Hucy. 410 
 See Tenants fok Life, 3. Mareiage Settlement. Assets, 1. Trust 
 Estates, 5, 6. Marital Rights. Marriage. 
 
 INFANT. 
 1, Quere, whether a promise by a parent indebted at the time, to pay an infant 
 for his services, will support a deed against the other creditors ? Brown 
 
 et ah. v. M'Donald 305 
 
 See Guardian and Ward. 
 
 INJUNCTION. 
 
 1. By the Act of 1825, p. 19, an injunction granted by the Commissioner con- 
 tinues in force no longer than the coming in of the answer; after which the 
 Chancellor may, in his discretion, grant a new injunction or make such 
 other "order on the bill and answer as the case may require;" and this 
 Court will not attempt to control in him the exercise of this discretion, but 
 upon a plain case of obvious error or mistake. Jwjnot v. Hah et als 4oU 
 
 INSOLVENT DEBTOR. 
 
 1. Where a debtor had been arrested under a ca. sa. and admitted to the benefit 
 
 of the Prison Bounds from whence he made his escape:— i/eW, that the 
 plaintiff might afterwards take out a fi. fa. Green v. Ahxand.r et als..... lo8 
 
 2. The 10th section of the Insolvent Debtors' Act, which incapacitates the debtor
 
 352 INDEX. 
 
 from pleacling the Statute of Limitations, relates only to demands existing 
 
 at the time of exhibiting his petition. Frescott v. Ilubbell et ah 212 
 
 INTEREST, 
 
 See Loan, 1. Evidence, 4. Bonds. 
 
 INTESTACY. 
 
 See Advancements. 
 
 ISSUE AT LAW. 
 
 1. The object of an issue at law, is to satisfy the Chancellor as to the truth of 
 
 certain facts, and he may look at the report of the trial and collect what 
 may satisfy his conscience; and if upon the whole, he is satisfied that 
 justice has been done, he may refuse a new trial, although evidence has 
 been improperly rejected at law. Lyles v. Lyles, AdrnW, et ah 81 
 
 2. The Court of Appeals in Chancery has the right to order an issue at law, 
 
 and it has exercised this right ever since its organization. Sinclair and 
 Kiddle V. Adm'rs of Price 440 
 
 3. The Court ordering the issue, has the power of deciding on a motion for a 
 
 new trial; but unless the decision upon the verdict in issue involve a 
 reversal of some previous decree in the case, the Chancellor on the Circuit 
 should hear and determine a motion for a new trial of an issue ordered by 
 
 the Appeal Court, lb , 442 
 
 See Appeal, 2, 3. 
 
 JOINT TENANTS AND TENANTS IN COMMON. 
 
 1. "Where land is held jointly, each co-tenant has a right to the enjoyment, to 
 
 the extent of his interest; and if one tenant voluntarily abandon his 
 possession, the other remaining, will not be accountable for the rent of the 
 entire tract, but only of such portion as has been rendered productive by 
 the labor of the tenant who abandoned it. Valentine \. Johnson 49 
 
 2. Where one joint tenant is in possession of land, and his co-tenant is indebted 
 
 to him on account of the purchase-money, the rents and profits must be 
 applied to the payment of that debt ; first to the interest which had ac- 
 cumulated up to the time the rent became due, and then to the accruing 
 interest, before any part is applied to the principal. Jb 50 
 
 3. A co-tenant has the right of enjoyment to the extent of his interest, and is 
 
 not liable for rent, unless he cultivated to a greater extent than his interest, 
 or unless he has expelled his co-tenant, or keeps her out of possession. 
 
 Lyles V. Lyles, Adm'r, et ah 86 
 
 See Tenant fok life, 3. Marital Rights, 4. 
 JUDGMENT. 
 1, Judgments bind lands throughout the State when abstracts of them have 
 been forwarded to the Clerk in Charleston. And where judgment was 
 obtained in one district, and land lying iu another was afterwards sold by 
 the defendant: — Held, that it will be presumed that an abstract was 
 forwarded to Charleston, and that the land was bound by the judgment. 
 
 Dawkins and Littlejohn v. Smith, .' 369 
 
 See Jurisdiction, 6, 7. Lien. 
 JURISDICTION (CHANCERY). 
 
 1. The Court of Equity will entertain jurisdiction of a bill by an administrator 
 
 against a distributee in possession, or one claiming under him, in order to 
 prevent circuity of action, and to enable the latter to set up an equitable 
 demand against the estate. Hinsonand Wife \. Picket — Myers, Adm'r, Picket, 41 
 
 2. Where a defendant is in possession of property, which is claimed in different 
 
 rights, by two plaintiffs in separate bills against him, the Court of Equity 
 will entertain jurisdiction of both cases, and decide in favor of the para- 
 mount title, in order to prevent further litigation between the parties. lb.. 42 
 
 3. Existing equities between the parties, will give jurisdiction in Equity; and 
 
 if the Court can see that, after sending the plaintiff to law, the defendant
 
 INDEX. 353 
 
 will bring liim bnck to set up his equity, the Court will retain the bill, 
 and decree at once on the questions made, lb 4j 
 
 4. Equity will entertain jurisdiction to set aside a fraudulent deed. M'Meekin 
 
 V. Edmonds and xvife, ct als '2.\s7i 
 
 5. If an executor or administrator find the atfairs of the estate so complicated 
 
 as to render the administration difficult and unsafe, he may institute pro- 
 ceedings in Equity against all the creditors to have their claim adjusted by 
 the Court, and to obtain its judgment for hi-j guide. There is no diiference 
 in this respect between an executor and administrator. Brown et als. v. 
 M'Dotmld 800 
 
 6. The general rule is that a creditor must first obtain a judgment at law before 
 
 he can ask relief in Equity; but this rule applies only where the Cou;tis 
 called on to aid a creditor in furtherance of his legal remedy; it has no ap- 
 plication when the Court is asked to give effect to its own judgment. And 
 therefore, where on a bill by an administrator against creditors to marshal 
 the assets, &c., an injunction was obtained restraining proceedings at law, 
 and creditors came in and established their demands; this is a judgment of 
 the Court of Equity: and if the creditors afterwards file their bill to set 
 aside certain conveyances by the intestate as fraudulent, and it appears 
 from the bill that they have no remedy at law, they will be entitled to relief 
 in Equity. lb 301 
 
 7. A creditor who has obtained judgment, sued out execution and levied it on 
 
 property in which the debtor has the equitable but not the legal estate, is 
 entitled to the aid of the Court of Equity, to make the property available 
 
 in payment of his demand. Perry v. Nixon 336 
 
 See Surety, 1. Tenant for life, 1, 2, 4. 
 LAPSE OF TIME. 
 
 1. Lapse of time in Equity, in analogy to the Statute of Limitation at Law, 
 
 will be a bar to relief against fraud. Prescott v. Ilubbdl et als 213 
 
 2. Where one being sole legatee under a will administered with the will an- 
 
 nexed, took possession of the property and held it for upwards of twenty 
 years and the will was then declared void and the probate revoked: — Held, 
 that this possession conferred title as against all persons who were not 
 under legal disabilities, and that after such a lapse of time the Court will 
 presume whatever is necessary to give efficacy to the possession. Riddle- 
 hoover et als. v. Kinard, AdrnW 378 
 
 LEGACY. 
 
 Lapsed Legacy — See Will, 4, 5. Vested Legacy — See Will, G. 
 LIEN. 
 1. The lien of a decree in Chancei'y, commences from the day on which it is 
 
 delivered to the Commissioner, and filed by him. Dawson v. Scriven 177 
 
 See Judgment, 1. 
 
 LIMITATION OF ESTATES. 
 
 1. A bequest of personal .property in the following words, "I lend to my 
 
 daughter, P. S., four negroes [naming them] during her natural life, and 
 then to the heirs of her body," vests the absolute estate in the first taker. 
 IlinsoJi and icifev. Pickett — Myers, Adrn'r, v. Pickett, 37 
 
 2. After a bequest to P. S., during her natural life, a limitation over to the 
 
 heirs of her body, enlarges the life estate into an absolute one, unless the 
 remainder can take eifect. lb 39 
 
 3. Eff"ect of the word " ^/iew," in such a bequest. lb 3'J 
 
 4. The appointment of executors in a will "for the intents and purposes therein 
 
 contained," will not control the legal eifect of words creating a limitation 
 over to the heirs of one's body. lb 39 
 
 5. Where a settlement of certain negroes was made to the use of husband and 
 
 wife during their joint lives, and to the use of the survivor, with a limi- 
 tation over; it was held, that upon the death of the husband, a legal estate 
 vested in the wife for life, which was subject to levy and sale under 
 YoL. I.— 23
 
 354 INDEX. 
 
 execution; but that the purchaser at sheriff's sale, should before delivery, 
 give bond and security for the forthcoming of the property on the termina- 
 tion of the life estate. Pringle et als. v. Allen 136 
 
 C. Where the testator bequeathed, viz. : "to my son Thomas and to him and 
 his heirs and assigns forever, the following negroes, [naiaing thfem] and 
 should he die without lawful issue, the said negroes shall return to my 
 other surviving children ;" Held, that the limitation over was good. Cordis 
 v. Ardrian 155 
 
 7. AVhere the testator devised a tract of land to his son " John, and to him and 
 
 his heirs and assigns forever ; but if he should die without lawful heir, or 
 before he is twenty-one years old," then the land to go to another son : the 
 word ^'' OT^' was construed '^ and" and it was held, that John took an 
 absolute estate, in fee, defeasible on his dying without issue under twenty- 
 one years of age ; that the limitation over, was not after an indefinite failure 
 of issue, but restricted to the event of the devisee's dying without issue 
 under twenty-one. and was therefore good as an executory devise. Adams 
 (t als. v. Chaplin et als 2G7 
 
 8. Where there was a devise to J. C, " but if he should die without an heir 
 
 lawfully begotten by him," then a limitation over : — Held, that the limitation 
 was too remote and therefore void. lb 2G8 
 
 1). Devise in '76, to J. C. without words of perpetuity or inheritance, "but if 
 he should die without an heir lawfully begotten by him," then a limitation 
 over — the limitation being too remote and therefore void, it was held, that 
 under the act of 1824, and the adjudged cases since, the devisee J. C. took 
 an estate in fee. lb 281 
 
 10. Conveyance in trust for the separate use of the grantee's daughter S. 
 during her life, remainder to such child or children of S. "as may be then 
 living, or who shall marry, or attain twenty-one years," the trust was 
 executed in the children of S. on her death, and the legal estate then vested 
 
 in them. S/>a/m and loife \. Jennings et als 324 
 
 See Will, 14, 15, 1(3. 
 LIMITATIONS (STATUTE OF). 
 
 1 . The possession of an agent or bailee is not adverse until after demand ; and 
 
 when an agent or attorney receives money for his principal, there is no 
 cause of action till demand, and the statute of limitations does not begin to 
 run until then. Lever v. Lever, 67 
 
 2. The statute of limitations runs from the discovery of a fraud. Eigleberger 
 
 et als. v. Kibler 121 
 
 3. The difference with regard to the Statute of Limitations, as applied to a case 
 
 of fraud at Law or in Equity, is in the time at which the cause of action is 
 considered to accrue ; at law, the cause of action is regarded as accruing 
 from the perpetration of the fraud, in Equity from its discovery, and there- 
 fore in Equity the statute will bar i-elief against fraud in four years after 
 discovery ; and to take the case out of the statute it should be stated in 
 the bill, that the fraud was not discovered until within four years before 
 the bill was filed. Frescott v. Ilubbell et als 214 
 
 4. The Court refused to permit the plaintiff to amend his bill, so as to allege 
 
 that the fraud was discovered within four years, when it appeared the fraud 
 was known to the plaintiff before that time. lb 217 
 
 5. A party coming into Equity for relief against a fraudulent deed, must come 
 
 within four years after the fraud was discovered. Farr v. Farr, Ex,'' or... . 391 
 G. And the same lapse of time (four years) will bar relief against fraud in a 
 
 deed for land, as well as for personalty. lb 392 
 
 See Tenant for life, 3. Insolvent Debtor, 2. — Lapse of Time. 
 
 LOAN. 
 1. Where the testator had loaned negroes to his son-in-law ; which he afterwards 
 permitted him to sell, and to apply the proceeds to his debts ; the amount 
 for which they were sold will be regarded as a loan without interest, until 
 
 payment was demanded. Neioma)i and icife y. Wilbourne, Ex'or, et als 12 
 
 See Will, 1.
 
 INDEX. ODD 
 
 MARITAL RIGHTS. 
 
 1. Where the wife, being sole next of kin to deceased infants, and entitled to 
 
 their whole estate, and there being no debts, before her marriage, took 
 possession of the estate without administration, and the husband, after 
 marriage had a like possession: — Held, that the marital rights of the 
 husband attached on the personal estate of the deceased children, and it 
 vested in him. Spann and ivifev. Jennings el als 325 
 
 2. One, being sole legatee, took possession and held the property upwards of 
 
 twenty years, and the will was then declared void: — Held, that the 
 possession conferred title, as against those who were not under legal 
 disabilities; and the legatee having married, and her husband obtained 
 possession, the marital rights attached as against those not under disabil- 
 ities. Riddlchoovcr et als. v. Kinard, Adni'r ; 382 
 
 ?. An administrator in possession of his intestate's estate died, and the funds 
 fell into the hands of his administrator. The widow was then appointed 
 administratrix dc bonis non, and guardian of her children, who were en- 
 titled to distributive shc^res of the estate, and afterwards married the 
 plaintiff, and together with her husband received the estate from the 
 administrator of the first administrator: — Held, that in respect to the fund 
 thus received, the plaintiff was not clothed with a representative character, 
 that he received it from the administrator in the character of husband, and 
 consequently that the marital rights attached. Boozer v. Wallace et als.... 395 
 
 4. Where the wife before marriage was a joint tenant of slaves, which went into 
 the possession of her co-tenant in her lifetime: — Held, that this was such 
 a possession by her, as that the marital rights of her husband would 
 
 attach. Burgess y. Heape 404 
 
 See Husband and Wife, 1, 2, 5. 
 MARRIAGE. 
 
 1. The defendant having married in Maryland, was divorced a mensa et thoro and 
 afterwards ( his wife there living) married the plaintiff in this State, and 
 took a possession of her property; on a bill filed to compel an account and 
 surrender of the property, the marriage here was declared void, and the 
 defendant ordered to surrender the property, and account for the rents and 
 profits. Young y. Nay lor 383 
 
 MARRIAGE SETTLEMENT. 
 
 1. Settlements in pursuance of marriage articles, must not always be made 
 
 according to their legal import, but in conformity with the intention of the 
 parties. Smith v. Maxwell 103 
 
 2. S., before marriage, executed articles stipulating to make a settlement of 
 
 his whole estate, to his wife, during his life, and at his death to be equally 
 divided between her and the children of the marriage : the wife died, her 
 husband and one child her surviving: on a bill filed by the child, to carry 
 the articles into effect : — Held, that he was only entitled to a moiety of 
 the property secured by the articles, lb 104 
 
 3. Where the Court of Equity by a decretal order directed the legacy of the 
 
 wife for which a decree had been obtained, to be settled to her separate use, 
 &c., according to the trusts of the will, this is not a marriage settlement 
 which need be recorded; and a deed afterwards executed to the wife 3 
 trustee, is not void because not recorded as a marriage settlement. 
 M'Jleeki)i V. Edwards atid wife, et als -*'" 
 
 MARSHALING ASSETS. 
 See Jurisdiction, 5. 
 
 MERGER. 
 
 1. The doctrine of merger considered, Adams et als. v. Chaplin e( als 270 
 
 2. Where a foe simple conditional is granted, the whole estate is in the tenant 
 
 in fee — there is no estate left in the grantor. The possibility of reverter, 
 on the determination of the fee by the death of the tenant without heira
 
 356 INDEX. 
 
 of his body, is not an estate, it is neither the subject of inheritance nor 
 devise ; and therefore, the fee conditional in the heir-at-law, cannot merge 
 in the possibility of reverter, if they should both meet in the same person. 
 lb 276 
 
 MISTAKE. 
 
 1. The decision in Lawrence v. Beaubien (2 Bail, G23) considered and adhered 
 
 to. Distinction taken between ignorance and mistake of the law ; the first 
 
 is not susceptible of proof, and cannot therefore be relieved ; but mistake 
 
 may be proved, and when proven relief will be afforded. Ex'ors of Ilopkim 
 
 V. Mazyck et als 250 
 
 See Consent, 1. Receipt. 
 MORTGAGE. 
 
 1. Where a mortgage of land having been recorded, the land was sold by the 
 
 mortgagor and the purchaser took possession: Ueld, that the recording was 
 notice to the purchaser, arid the statute of limitations will not bar the 
 mortgage lien. The decision in Thayer v. Cramer, 1 M'C. Ch. 395, con- 
 sidered and adhered to. Smith and Cuttino v. Osborne et als 342 
 
 2. Under the Act of 1791, the Court of Law has no authority to foreclose a 
 
 mortgage of lands where the mortgagor is out of possession; and the sheriff 
 having in such case, under an order of the Court of Law, sold the mort- 
 gaged premises and received the purchase-money and applied it to the 
 satisfaction of the mortgage and a judgment against the mortgagor, the 
 sale is void, and the purchaser has the right to be reimbursed the sura 
 paid. Primarily the sheriff is liable, as also are the parties who received 
 the benefit, and at whose instance the sale was made; but in order to avoid 
 multiplicity and circuity of action in the Court of Law, this Court will order 
 the lands to be sold to reimburse the purchaser, and in relief of the mort- 
 gage and judgment creditor. Stoney et als. v. Shultz et als 495 
 
 3. At common law the legal estate vests in the mortgagee ; after condition 
 
 broken he is entitled to the possession of the land, and may maintain a 
 possessory action against any one in possession and is entitled to receive 
 the rents from the tenants. The Act of 1791 ( 1 Faust, 63) has made no 
 change and profits in this respect, where the mortgagor is out of 
 possession ; the proviso of the Act renders it wholly inoperative when the 
 mortgagor is out of possession ; and therefore in such case the mortgagee 
 still has a right to receive and retain the rents, having given notice of the 
 mortgage to the tenants in possession. lb 497 
 
 4. In ordering a sale of mortgaged premises which had been sold in lots 
 
 by the mortgagor subsequent to the mortgage, to several purchasers at 
 different periods, the Court directed the sale of the lots in the order in 
 which they had been conveyed, beginning with the last, and proceeding 
 according to the order of the dates, to the first, lb 500 
 
 5. The mortgagee is only entitled to the land and the rents accruing from it in 
 
 the condition it was when mortgaged ; and where the mortgagor had sold 
 the land, and the purchasers had improved, and thereby increased the 
 rents, the Court directed the rents to be so apportioned that the mortgagee 
 
 should only receive the ground rents. lb 501 
 
 See Assignment, 3. Contract, 3. 
 
 NOTICE. 
 
 See Mortgage, 1, Debtor and Creditor, 3. Equitable Interest. 
 
 Voluntary Conveyance. 
 
 OFFICIAL BOND. 
 See Commissioner, 2, 3. 
 
 ORDINARY. 
 
 1. In order that the parties should be bound by the decree of the Ordinary on 
 matters of account, it should appear by the proceedings, that they were
 
 INDEX. 357 
 
 legally before him, either by citation duly served, or appearance by con- 
 sent, set out on the face of the decree. Miller v. Alexander, '2~ 
 
 2. Quere. — Can the Ordinary appoint an administrator, where the executor liad 
 
 made probate and gone without the State? Ex parte Oalluchal, 100 
 
 PAROL EVIDENCE. 
 
 See Evidence. 
 
 PARTIES. 
 
 See Pleading, 1. Assignment, 1. Fraud, 4. 
 
 PARTITION. 
 
 1, The defendants being in possession of negroes of which the plaintiff is 
 
 entitled to partition, and having employed them as their own, and some of 
 the negroes having been removed out of the State, the Court ordered the 
 defendants to account for the value of negroes, by the appraisement, with 
 interest thereon, instead of the negroes themselves and their hire. Lyles 
 V. Lyles, Adin'r, et ah 90 
 
 2. Application for partition being premature it was refused, but the bill retained 
 
 with leave to apply by petition, when the parties respectively become en- 
 titled to receive their shares. Cole et als. v. Crcxjon 322 
 
 See Distributive Shares. 
 PARTNERSHIP. 
 1. Judgment creditors of a co-partnership may be compelled by the purchasers 
 of the individual property of one of the partners, to exhaust the partnersliip 
 property before they resort to the property purchased by them ; and if the 
 creditors release the partnership property from the lien of their judgments, 
 they are without any remedy against the purchasers. (06. diet.) Stoney 
 et als. V. Skultz et als 496 
 
 PENALTY. 
 
 See Bonds. 
 
 PER CAPITA. 
 
 See Will, 7, 18. 
 
 PERSONAL PROPERTY. 
 1. Principles applicable to a bequest for life of chattels consumable, or wearing 
 
 out, in the use. Robertson et als. v. Collier ajid n-ife, et als 373 
 
 See Limitation of Estates, 1, 2. Tenant for Life. 
 
 PLEADING 
 
 1. On a bill to charge a specific legacy with the payment of an annual sum, all 
 
 the parties in interest should be before the Court ; and the Court may, at 
 any stage of a case, direct a bill to be amended so as to make proper 
 parties, and this may be done with or without costs, according to the 
 discretion of the Court. Caheenw. Gordon ;■■• '"^^ 
 
 2. The plaintiff should set out in his bill, his title, and the grounds on which 
 
 he expects to recover, and the proof should correspond with the allegntions 
 contained in it; but if parties go to trial, on general statements, contained 
 in a bill or answer, and permit proof to be given which ought to have been 
 exhibited on the record, the Court is bound to decree on the cnse thus 
 made, if enough appears on the record to warrant the judgment, which the 
 facts proved, authorize the Court to pronounce. Clark and ici/e v. Saxon.. 1 1 
 See Account, 1. Practice. 
 
 POSSESSION. 
 
 See Evidence, 1, Lapse of time, 2. 
 
 m 
 
 POSSIBILITY OF REVERTER. 
 See Merger, 2.
 
 358 INDEX. 
 
 PRACTICE. 
 
 1. The effect of two separate bills for the same property being tried together, 
 
 and decided by one decree, is the same as if all the matters contained in 
 both, had been stated in one ; and the cases may be consolidated. Hinson 
 and wife y. rickett. Myers, Adin'r, y. Pickett 43 
 
 2. Under the Act of 1791, when the amount claimed does not exceed £100, 
 
 the proceeding may be b}' petition instead of bill, whether the cause be 
 litigated or not. Skillivg v. Jackson, AdrnW, 185 
 
 3. Where a party has neglected to file exceptions to the Master's report, within 
 
 time prescribed by the rule of Court, he will not afterwards be permitted 
 to file them, unless he shows by affidavit, that he was prevented from filing 
 them by accident, mistake or surprise. Adm^ x of Fooie y . Van Eanst, Adrn'r. 185 
 See Pleading. Defendants. Commissioner, 1. Partition, 2, Injunc- 
 tion. Appeal, 6. 
 
 PRINCIPAL AND AGENT. 
 
 1. One who was authorized by power of attorney, to demand and receive a 
 
 legacy for his principal became indebted to the executor, in whose hands 
 the legacy was, and failed ; afterwards, by letter to the executor, he 
 acknowledged that he was indebted to him a balance of two thousand eight 
 hundred and ninety-one dollars, and promised to account to his principal 
 for this sum, as so much of the legacy ; but he gave no discharge to the 
 executor, nor did he receive one from his debt, nor was there any agree- 
 ment that one demand should go in payment of the other : — Held, that this 
 was not a payment by the executor, which would discharge him for that 
 amount. Benoist, Adni'x, v. Poirier 221 
 
 2. It seems, that even if there had been an agreement between the executor and 
 
 the attorney, that the debt due from the latter to the former, should be 
 regarded as so much in payment of the legacy, and mutual acquittances 
 given, it would not, under such circumstances, be a compliance with the 
 power, and therefore void. lb 222 
 
 3. On a bill against an agent for an account, his books are not admissible to 
 
 prove the sale and delivery of provisions and necessaries to the principal. 
 
 Poag, Ex'or, v. Poag 287 
 
 4* Although the agent in such case may be considered a trustee, and his trans- 
 actions regarded with jealousy, yet he will be entitled to credit for notes 
 on his principal, payable to himself during his agency, without showing 
 their consideration, unless there be some evidence to impugn them. lb.... 287 
 
 See Commissions, 3. 
 
 PURCHASER. 
 
 See Sheriff's Sales, 2, 3. Partnership. Mortgage, 1, 2, 4, 5. Vendor 
 
 and Purchaser. 
 
 RECEIPT. 
 
 1. Where there is something certain due, and there is a doubt whether the 
 
 creditor may not be entitled to something more, and he thinks proper to 
 accept what is certainly due and give a receipt in full, he is bound by it, 
 notwithstanding it should afterwards turn out that he was entitled to 
 more. Chcsnut and wife, et ah. v. Strong, Ux'or 127 
 
 2. A receipt is ovAy prima facie evidence that all matters were then accounted 
 
 for, and finally settled; it is not conclusive, and if fraud or mistake can be 
 shown, relief will be granted against it: and therefore, where, on a bill to 
 account, the defendant produced a receipt in full, if the plaintiff can show 
 that there were other moneys not embraced in the receipt, and not then 
 accounted for, he may do so, and will be entitled to relief. — See Benjamin 
 V. Sinclair, 1 Bailey, 175; M'Dowell & Black v. Lemaiter, 2 M'C. 320. 
 Pinchback v. i/' Craven 30i 
 
 RECEIVER. 
 1. A receiver will be appointed where the executor has left the state. Ex parte 
 
 Galluchet .' 160
 
 INDEX. 359 
 
 RECORDING. 
 
 1. It is not necessary to the validity of recording, that tlie probate of the 
 
 ■witness should be endorsed on the deed. — (per Chancellor De Saussurc.) 
 IliUeffas and icife v. Hartley 107 
 
 2. Where a feme covert joins her husband in a conveyance, and renounces her 
 
 inheritance according to the act of 1795, the renunciation is not "complete 
 and legal " until recorded ; and if it has not been recorded within the time 
 
 prescribed by the Registry Act (1785), it is absolutely void, lb HO 
 
 See Makriage Settlement, 3. Mortgage, 1. 
 REIMBURSEMENT. 
 
 1. Conveyance of land set aside as fraudulent against creditors, but the grantee 
 
 intending no actual fraud, having paid the consideration and applied it to 
 the payment of the grantor's debts, and afterwards devised the land, the 
 Court ordered the money actually paid to be refunded to the devisee, and 
 the deed to stand as a security for it. Brown ct als. v. McDonald 305 
 
 2. Where there was a purchase of land at sherilf' s sale, and the money paid 
 
 and applied to a mortgage and judgment, and the sale was void for want 
 of authority on the part of the sheriff to sell; tlie purchaser is entitled to 
 be reimbursed the sum paid, and the Court ordered the land to be sold, to 
 reimburse the purchaser, and in relief of the mortgage and judgment 
 
 creditor. Sloney et als. v. Shultz et als -195 
 
 See Sheriff's Sales, 2. 
 RENTS AND PROFITS. 
 1. The value of rent can only be ascertained by the opinion of witnesses 
 acquainted with the lands; and where the Commissioner had fixed the 
 value of rent, and adopted ten per cent, per annum, as a scale of deprecia- 
 tion, so that at the expiration of ten years no rent was charged, the Court 
 held it error, and ordered the report back. Lyles v. Lylcs, AdmW, et ah.. 8-1 
 See Joint-tenants and Tenants in Common. Voluntary Conveyance, 3. 
 Mortgage, 3, 5. 
 RENUNCIATION OF WIFE'S INHERITANCE. 
 See Recording, 2. 
 RESIDUARY BEQUEST. 
 See Will, 4, 5, 12. 
 REVERSION. 
 See Tenant for Life. 
 SALE (ADMINISTRATOR'S). 
 See Executors and Administrators, 7. Confirmation. 
 SALE BY THE COMMISSIONER. 
 See Trustee, 4. 
 SECURITY FOR THE FORTHCOMING OF TROrERTY. 
 See Tenant for Life, 1, 2, 3, 4. Limitation of Estates, 5. 
 SHERIFF'S SALE. 
 
 1. A tract of land being under levy, the defendant (in this case) had agreed 
 
 with the debtor and creditor to purchase it at a fair price, and the sheriff 
 was instructed not to sell ; and in consequence of tlii.s agreement neither 
 creditor nor debtor attended on sale day, and the land was sold by the 
 sheriff and purchased by this defendant at an undervalue, whereby the 
 debt was endangered: on a bill tiled for this purpose, the sale was set asnle. 
 Lovdand and Wilson v. Mansell and Reid •" 
 
 2. A sheriff's sale of a tract of land to one who purchased at the instance of the 
 
 debtor in the execution, and conveyed to a trustee for the beneht of the 
 debtor's family, under the circumstances set aside; but tiic mother of the 
 debtor's wife having advanced money towards the purchase, and which
 
 360 INDEX. 
 
 ■went to the payment of his debts, and the trustee having afterwards paid 
 out money in discharge of a mortgage, to which the land was subject when 
 sold, and neither of them having been accessory to the fraud, the Court 
 held that the money thus advanced should be refunded, and that the land 
 should stand as security for the payment. iPMcekin v. Edmonds and wife, 
 
 e.t ah 292 
 
 S. The general rule that there is no implied warranty in sales made by a sheriff 
 
 or other ministerial otficer, applies exclusively to the quality and property 
 
 of the thing sold ; it does not apply to cases where the sheriff or other 
 
 ofBcer assumes an authority where none is given by law. In every case 
 
 there is an implied covenant on the part of the sheriff, that he has authority 
 
 to sell ; and the recital in his deed of his authority, as effectually estops 
 
 Lim, as if it had been an express covenant. Stoney el ah. v. Shultz ct ah.. 493 
 
 See Assignment, 3. 
 
 SPECIFIC PERFORMANCE. 
 
 See Contract, 1, 2. Agueement, 1. 
 
 SUBROGATION— SUBSTITUTION. 
 
 Where allowed. Ilinson and Wife v. Pic?cett. Mi/ers, AdrnW, v. Pickett 43-46 
 
 Perkins et ah. v. Kershaw et ah. 851 
 
 See Surety, 2. Reimbursement, 2. 
 
 SURETY. 
 
 1. Where the payee of a promissory note, by contract with the principal 
 
 maker extends the time of payment, without the consent of the surety, the 
 latter is discharged, and he may avail himself of this defence, in a Court 
 of Law ; but having failed to do so, he cannot afterwards obtain relief in 
 E-juity. Maxivell y. Connor 15 
 
 2. A surety paying the debt of his principal, may be remitted to all the rights 
 
 of the creditor; and where separate judgments were obtained against the 
 jirincipal and surety for the same debt, and the latter paid the judgment 
 against himself, and thereupon the sheriff entered satisfaction on both 
 executions, the surety will be allowed to vacate the entry of satisfaction 
 on the judgment against the principal, and to set it up as a lien on his 
 
 estate. Perkins et ah. v. Kershaw et ah 351 
 
 See Commissioner, 2, 3. Assignment, 2. 
 
 TENANT FOR LIFE. 
 
 1. Where the defendant is in possession of personal property as tenant per outer 
 
 vie. Equity will entertain jurisdiction at the instance of the remainder-men, 
 in order to compel him to give security for the forthcoming of the property, 
 if there has been any attempt to remove it; and the defendant cannot, in 
 such case, defeat the jurisdiction of the Court, by setting up a paramount 
 legal title in one of the plaintiffs. Ilinson and ivife v. Pickett — Myers, 
 Ad/n'r. v. Pickett 44 
 
 2. On a bill filed to compel defendants to give security for the forthcoming of 
 
 property, to entitle the plaintiffs to a decree, it is not necessary that a case 
 of trust created by express contract should be made out. Clark and wife 
 V. Saxon 73 
 
 3. Where a feme covert has a separate estate for life in some, and undivided 
 
 interest as tenant in common, in others, of the slaves in question, she is a 
 trustee for those claiming in reversion and as co-tenants; and on a bill 
 filed to compel her and her husband to give security for the forthcoming of 
 the property, her coverture cannot be pleaded in bar of the trust, nor in 
 abatement of the suit; nor can her husband avail himself of the statute of 
 limitations; but on proof that they intended to remove the slaves, they 
 were ordered to give security not to remove them beyond the State. lb. 74 
 
 4. It has been the constant practice of the Court of Equity, to require security 
 
 for the forthcoming of property oa the termination of a life estate, or on 
 any other event when the rights of remaiuder-men or reversioners spring
 
 INDEX. 361 
 
 up, •whenever those rights appear to be in danger. Cordcs v. Ardrian 
 
 ei ah 157 
 
 5. Principles applicable to a bequest for life of chattels consumable, or wearing 
 
 out, in the use. Robertson ci ah. v. Collier and wife et ah «.... 373 
 
 6. Where an estate, consisting of a plantation and slaves, stock, farming 
 
 utensils, &c , are devised to one for life (or widowhood) the perishable 
 articles cannot be considered as belonging absolutely to the tenant fur life. 
 The tenant for life will be considered as a trustee for the remainder-man, 
 and must preserve the estate, with all its appurtenances, in the same 
 
 situation in which it was received. lb 374 
 
 See Limitation of Estates, 5. 
 
 TRUST. 
 
 See Tenant for Life, 2. 
 
 TRUSTEE. 
 
 1. A. trustee who has received money, must discharge himself by proof. Terry, 
 
 Adm'r, v. Hopkins et ah 9 
 
 2. Trustees of estates shall not exceed in expenditure the amount of the income, 
 
 so as to charge the capital ; in some cases of necessity this has been 
 sanctioned by the Court: but where the defendant had assumed the 
 management of a testator's estate without authority, and refused to qualify 
 as executor, it was held that he was not entitled to the privileges of a 
 trustee. The Court would not require him to give security, but ordered 
 him to account annually before the Commissioner, until he qualified, and 
 that no balance should be struck in his favor, nor allowance made for his 
 personal services. Ilaiyoodv. Wells 60 
 
 3. Whei-e a husband in pursuance of a marriage contract, purchased lands and 
 
 had the titles made to the trustees under the settlement, but the deeds were 
 absolute, not declaring any trusts, and the husband afterwards sold the 
 lauds, and the trustees at his request, conveyed to his purchasers, and he 
 received and squandered the proceeds: it was held, that the trustees were 
 liable, although they did no other act showing their acceptance of the trust. 
 Kinloch et als. \. r On et ah 191 
 
 4. Where a trustee purchases at his own sale, it is at the option of the parties 
 
 interested without any inquiry into the cii'cumstances, to have a re-sale, or 
 to hold the trustee to his purchase. If they elect to have a re-sale, the 
 course is to put the property up at the price bid by the trustee — if more is 
 bid at the second sale the property is re-sold — if not, the trustee is held to 
 his purchase: And such a sale is not less the sale of the trustee, because 
 made under the order of the Court and superintendence of the Commis- 
 sioner, when procured at his instance. Ez parte Wiggens 354 
 
 5. This Court views contracts between trustees and their cestui que trusts in 
 
 relation to the trust property with great suspicion. Farr v. Farr, Ex.' or... 390 
 See Hire, 1, 2, Commissions, 1, 3. Tenant for life, 3. 
 
 TRUST ESTATE. 
 
 1. No mode of investment having been prescribed by the will, the Court ordered 
 
 a residuary trust fund to be invested in land and negroes, subject to the 
 trusts and limitations of the will. Ex parte Calmes, _■ 1^"^ 
 
 2. How far and under what circumstances, trust estates will be held liable for 
 
 debts contracted for their benefit, or in furtherance of the objects of the ^ 
 trust. Magwood and Patterson V. Johnston et als • ~"^ 
 
 3. The equity of a creditor to render a trust estate liable for his debt, is that 
 
 he has advanced his money, or given his credit to effect the objects of the 
 trust, and in charging trust estates with such debts, every estate must bear 
 its own burthens. lb ...., ; ;•• ■**"^ 
 
 4. To expend money for the benefit of a trust estate, means either adding to its ^^ 
 
 value or defraying charges to which it would be liable, lb -"4 
 
 6. The wife's separate estate, in general, is not liable for the expenses of herself 
 
 and family— the husband, if he be of ability, is bound to support hia
 
 362 INDEX. 
 
 family; and if he contract debts for the support of his w'ife and children, 
 and the credit is g;iven to him, neither the separate estate of the wife, nor 
 the remainder to the children, is liable for such debts, altliough the husband 
 sh(^uld prove insolvent. Ih 234 
 
 6. Althougli the wife cannot by her own mere act, charge her separate estate, 
 
 if she is under the necessity of supporting herself and family on the ere lit 
 of her estate, she may do so, but the Court, before making her estate liable, 
 will see that such necessity existed, and that the advances of money or 
 goods were proper ; and with respect to such an account, the dealings 
 should appear to have been bona fide with the wife, and not with the hus- 
 band : Therefore where, by marriage settlement, the fortune of the wife was 
 settled to her separate use during life, remainder to the issue of the 
 marriage : and the husband's estate was settled on himself during life, 
 remainder also to the issue, subject to an annuity to the wife ; and the 
 hiisband, during coverture, having charge of the trust estates, contracted 
 debts for necessaries for his'family, and for supplies to the plantations, and 
 died insolvent : Held, that neither the life estate of the wife nor the re- 
 mainder of the children, was liable for such debts. But if the husband act 
 as his wife's agent, in furnishing necessaries for her and the family, and in 
 procuring supplies for her separate estate, and if such an account was 
 necessary and proper, her separate estate will be charged with it. lb 236 
 
 7. Where a trustee has been legally compelled to pay money as the surety of 
 
 his cpstui que trust ; in Equity the trust estate will be charged with the 
 
 amount paid. Perkins et als. \. Kershaw et als 349 
 
 See Trustee, 2, 8. 
 
 VENDOR AND PURCHASER. 
 1. Where one who was a distributee of an estate conveyed certain slaves of his 
 ancestor by bill of sale, in which no words are used descriptive of his 
 distributive share, and before administration, when he had no legal 
 interest; the distributive share does not pass to the vendee; but if the 
 vendee has advanced money, in satisfaction of a debt due by the intestate, 
 he may be subrogated to the rights of the creditor, whose debt he has paid. 
 Ilinson a?id wife v. Pickett. 3Iyers, AdniW, v. Pickett 45 
 
 VOLUNTARY CONVEYANCE. 
 
 1. The right of a creditor to avoid a voluntary conveyance, arises from the fact 
 
 that he cannot otherwise be paid; and if a creditor comes into equity to 
 avoid such a conveyance, it must appear that he had no other means of 
 payment: certain creditors (the phiintifiFs), with a knowledge of such 
 conveyance, stood by and permitted other and junior creditors to exhaust 
 the debtor's property, and meanwhile the donee had possession, and made 
 permanent improvements on the land ; on a bill filed to set aside the con- 
 veyance : — Held, that they were not entitled to relief. Eigleberger et als. v. 
 Kibler 119 
 
 2. A subsequent creditor with notice, is not entitled to have a voluntary con- 
 
 veyance set aside. lb 121 
 
 3. A deed or marriage settlement which is good between the parties, but void 
 
 as to creditors for the want of a schedule, or for not being recorded, is 
 nevertheless valid as to creditors until they choose to avoid it by seizing 
 the property, and the party in possession under it will not be bound to 
 account for rents and profits during the time such deed was regarded as 
 
 valid. Frij}p V. Talbird 143 
 
 See Infant. 
 WILL. 
 
 1. The terra ^ lend' in a bequest will be considered synonymous with, ^give" 
 
 unless it is manifest that the testator did not intend the legal estate to pass 
 
 to the legatee. Ilinson and wife y . Pick'^tt — Myers, AdinW, v. Pickett 38 
 
 2. The testator, by his will, bequeathed certain negroes to his helpless daughter, 
 
 B. and then declares "I allow my daughter M., to take care of the said B.,
 
 INDEX. 363 
 
 and at her decease I allow my said daughter M., to have the said negroes, 
 to her and her heirs and assigns, forever:" Held, that this is a bequest on 
 condition that the direction be complied with, and that if M. should not 
 "take care of B." the remainder would not vest, and that the negroes 
 might be sold for the support of B. Cabecn\. Gordon ct als 55 
 
 3. The word ''allow" in a will, may be construed as synonymous with "direct" 
 
 or "give," so as to effectuate the intention of the testator. lb 5G 
 
 4. The general rule is, that a lapsed legacy of chattels passes under a general 
 
 residuary bequest, but the rule does not apply where the residuary bequest 
 is of a particular fund or description of property, or other certain resid- 
 uum. Peay and Pichett v. Barber, 97 
 
 5. Testator, by his will, bequeathed to his wife one-half of his negroes, 
 
 household furniture, stock, money, debts, &c. ; and to his sister's children 
 (by name) "all the rest of my negroes and their increase," and adds that 
 "all the rest of my property not disposed of, I wish to be sold at public sale," 
 and the proceeds to be divided among the said children, and " the rest of 
 my money on hand and owing, I wish to be disposed of in the same man- 
 ner," &c. ; the testator's wife died in his lifetime, so that the legacy to her 
 lapsed: — Held, that the words "all the rest of my property," must be 
 understood as exclusive of the negroes, money and debts due; and as cover- 
 ing only the household furniture stock, movables and chattels of that class 
 of property ; that nothing else of the lapsed legacy but property of this 
 description passed under the residuary bequest, and that the negroes, 
 
 money and debts due, descended to the heii'S general. lb 98 
 
 A residuary bequest to be paid when the legatee arrives at twenty-one, gives 
 a present vested legacy, and the legatee will be entitled to the profits or 
 interests (if any accrue) in the interval between the testator's death and 
 her attaining twenty-one. Chesnut and ivife et ah. v. Strong, Ex'or 123 
 
 7. Where a testator, by his will, devised, viz. : "all the residue and remainder 
 
 of my real and personal estate, wheresoever situated, to be equally divided 
 in the following proportions, that is to say, two shares to my deceased sons' 
 (William and James) children, to be equally divided among them:" it was 
 held, that all the children of William and James took equally per capita. 
 Ex parte Leilh, Ex'or, 153 
 
 8. The testator by his will, disposed of his whole estate, and amongst other 
 
 things, bequeathed certain negroes to his son, W. H. D. during life, re- 
 mainder over; and by another clause, directs "his estate to be kept 
 together until his debts are paid ; it was held, that the testator meant no 
 more than that the absolute right of the legatees should not vest until his 
 debts were paid; that the restrictive clause applied only to the mass of the 
 estate, and not to the specific legacy ; and (the tenant for life being dead,) 
 that the legatee in remainder was entitled to the immediate possession of 
 the negroes, although the debts were not paid, and could retain them until 
 the rest of the estate should prove insufficient to pay the debts. Drayton 
 V. Grimke, AdrnW "'"^ 
 
 9. A bequest of "Driver Dick and his family, to wit, his wife and children," ^^^^ 
 
 includes only the wife then living, and the issue of their cohabitation.^ lb. --< 
 
 10. Where a contingent legacy in remainder was given on the legatee's attaining 
 
 twenty-one, and assuming the surname of the testator, and there was 
 nothing in the will showing an intention on the part of the testator to 
 pi'ovide a fund for maintenance and education:— //eW, that the legatee in 
 remainder was not entitled to the intermediate profits of the legacy, from 
 the death of the tenant for life until the estate vested in him. lb....... 2L7 
 
 11. A witness may attest the execution of a will, by signing the initials of his or ^ 
 
 her name. Adams et als. y. Chaplin et ah ••"• ~" 
 
 12. Where the residuary clause of a will contains the following words—" I do 
 
 hereby leave all the rest of my property that is not above mentioned, such 
 as horses, cattle, hogs, sheep, geese, beds, crop and other articles, too 
 tedious to mention," &c. ; Held, that money on hand at the testator's death, 
 passed under it. Stuckey v. Stuckey •■•••• """^ 
 
 13. General rule that in a bequest to the children of A. and B., or to A. and the
 
 364 INDEX. 
 
 children of B., they take per capita; but a bequest to an ascertained indi- 
 vidual, and to a class of unascertained individuals to be ascertained at any 
 future time, vests a present interest of one-half in the individual ascer- 
 tained, and the other half vests in the class collectively, -when they are 
 ascertained. Cole et ah. v. Crryon 319 
 
 14. WhA-e a bequest is to children at the death of a tenant for life, those -who 
 
 then answer the description of children will take. lb 323 
 
 15. Testator by his will, devised his estate to his wife, during widowhood, and 
 
 then adds, "which said property I wish and devise, at the marriage or 
 death of my wife, to be equally divided amongst my children as above 
 named;" G., one of the testator's sons there named, survived him, but died 
 before the widow: — Held, that this was a vested remainder in G., and his 
 representatives are entitled to his share. Bankhead, AdmW, v. Carlisle, 
 AdrrCr 358 
 
 16. Where there are two inconsistent bequests of the same property in the same 
 
 will, the second revokes the first: and where the testator, by one clause of 
 his will bequeathed a slave to his son, remainder to his issue, and failing 
 in issue, remainder over; and by a subsequent clause bequeathed the same 
 slave to his daughter, with like limitations: — Held, that the clauses were 
 inconsistent, and the last revoking the first, that the daughter was entitled 
 
 to the legacy. Frasery. Boone and wife 367 
 
 See Limitation of Estates, 1, 2, 3, 4, 6, 7, 8, 9. Trust Estate, 1. 
 Evidence, 4. Assets, 2. Annuity, 1. Personal 
 Property, 1. Tenant for Life, 6. 
 
 WITNESS. 
 
 1, An executrix who has no interest, is a competent witness to prove a debt, 
 
 where it is properly before a Court of Equity ; but if the debt is recoverable 
 in an action at law, in which she must be the plaintifiF, this Court will not 
 permit her to be examined, but will send the parties to a Court of Law to 
 establish the debt. Newman and wife v. Wilhourne, Ex'or, et als 13 
 
 2. Where a wife, before marriage, had administered on an estate and done 
 
 certain acts amounting to devastavits, the moneys arising from which on 
 her marriage went into the hands of her husband; after the decease of the 
 husband on a bill filed against her, and the administrators of her husband 
 for an account of the funds so received, it was held, that she was a com- 
 petent witness on being released from all liability to her intestate's estate; 
 and perhaps even without such release. Capehart and wife et als. v. Adm'rs 
 
 of Huey, 407 
 
 See Evidence. Will, 11.
 
 REPORTS 
 
 CASES IN CHANCERY, 
 
 ARGUED AND DETERMINED 
 
 COURT OF APPEALS, 
 
 SOUTH CAROLINA, 
 
 FROM MARCH, 1834, TO MAY, 1837, BOTH INCLUSIVE. 
 
 BY W. R.HILL. 
 
 VOLUME II. 
 
 CHARLESTON, S. C. 
 McCARTER & Co., No. 116 MEETING STREET. 
 
 1858.
 
 JUDGES OF THE COURTS OF APPEAL, AND CHANCELLORS, 
 
 DURING THE TIME OF THIS VOLUME. 
 
 JUDGES OF THE COURT OP APPEALS, BEFORE DEC, 1835. 
 
 Hon. DAVID JOHNSON, President. 
 Hon. J, B. O'NEALL. ] Hon. WILLIAM HARPER. 
 
 CHANCELLORS, BEFORE DECEMBER, 1835. 
 
 Hon. henry W. DE SAUSSURE. | Hon. JOB JOHNSTON. 
 
 CHANCELLORS AND LAW JUDGES, 
 
 Constituting a Court of Ajipeals in Lmu and Equity, from Dec, 
 1835 to Dec, 1836. 
 
 CHANCELLORS. 
 
 Hon. HENRY W. DE SAUSSURE, President. 
 " DAVID JOHNSON, 
 " WILLIAM HARPER, 
 " JOB JOHNSTON. 
 
 LAW JUDGES. 
 
 Hon. J. B. O'NEALL, 
 " RICHARD GANTT, 
 " J. S. RICHARDSON, 
 " JOSIAH J. EVANS, 
 " B. J. EARLE, 
 " A. P. BUTLER. 
 
 CHANCELLORS, 
 
 Constituting the Court of Appeals in Chancery, after Dec, 1836. 
 
 Hon. henry AV. DE SAUSSURE, President. 
 " DAVID JOHNSON, 
 " WILLIAM HARPER, 
 " JOB JOHNSTON.
 
 TABLE OF CASES 
 
 REPORTED IN THIS VOLUME. 
 
 [The folios in this Table refer to those marked with an asterisk, * ] 
 
 Adger, Bank v 262 
 
 Allen, Ex'or of, v. Runiph and 
 
 others 1 
 
 Allstons V. The Bank 285 
 
 Angel, ex'or, Sherman v 26 
 
 B 
 
 Baceler y Farrow Ill 
 
 Bank V. Adger 262 
 
 Bank, Allstons y 235 
 
 Bank V. Trapier and others 25 
 
 Banks v. Brown and others 568 
 
 Barelli, Messervey and others v 567 
 
 Barksdale, Bona v 184 
 
 Barksdale, Edwards « 184 
 
 Barksdale, Edwards 11 416 
 
 Barnwell v. Barnwell, ex'or 228 
 
 Barnwell and others v. Porteus and 
 
 others 219 
 
 Bell «. Coiel 108 
 
 Bethea, Ridgell y 365 
 
 Blacky. Hair & Black 622 
 
 Blake and Wife, Jones & Briggs v... 629 
 
 Bona y. Barksdale 184 
 
 Bona y. Davant 528 
 
 Boykin and Wife v. Ciples and Wife. 200 
 
 Britton and Wife v. Johnson 430 
 
 Brown and others, Banks v 558 
 
 Brown, ex'or, Fable y 378 
 
 Brown and Wife v. Lindsay, adm'r.. 542 
 
 Brown, M'MuUin, adm'r, v 457 
 
 Brununet, M'lMeekin y 638 
 
 Brunson and Wife v. Hunter's 
 
 adm'r. and heirs 483 
 
 Bryan, Fryer and Wife v 56 
 
 Bryan y. Mulligan, ex'or 361 
 
 Bryson, adm'r, v. Nickols and others. 113 
 
 Caldwell, adm'r, v. Giles 548 
 
 Champion and others, Chesnut v 72 
 
 Chesnut v. Champion and others 72 
 
 Chesnut and Wife v. Strong, ex'or.. 146 
 Cheves, ex'or, v. Dallas and others.. 299 
 Chewning y. Singleton 371 
 
 Ciples and Wife, Boykin and Wife v. 200 
 
 Clarke, King y 611 
 
 Clarke, Kinsler y 617 
 
 Coiel, Bell v 108 
 
 Conner, adm'r, and others v. John- 
 son, adm'r, and others 41 
 
 Cooper y. Adm'rs of Held 549 
 
 Crispin \. Taylor, (note) 434 
 
 D 
 
 Dallas and others, Cheves, ex'or, v. 299 
 
 Davant, Bona y 628 
 
 Davidson, surv'g ex'or, v. Huff 
 
 adm'rs, and others 140 
 
 Davis y. Davis, adm'r 377 
 
 Davis and others. Gist v 335 
 
 Deas and Wife v. Horry and others. 244 
 
 De Witt, Harley and Wife v 367 
 
 Douglass and others, Isiolon y , 443 
 
 Dubose and others, Muklrow and 
 
 Bruce v 375 
 
 E 
 
 Edgerton and others v. Muse and 
 
 Wife 51 
 
 Edwards y. Barksdale 184 
 
 Edwards D. Barksdale 416 
 
 Ep. Church af IMacon v. Wiley 684 
 
 Esswein v. Seigling, ex'or 600 
 
 Ax parte Heard 64 
 
 Ex parte Martin 71 
 
 Ex parte Palmer 215 
 
 Ex parte lihW^Y, Com'r 378 
 
 F 
 
 Fable v. Brown, ex'or 378 
 
 Farrow, Backler v HI 
 
 Fleming and others, Peay, adm'r, v. 97 
 
 Fogg and Wife y. Middleton 691 
 
 Foreman, adm'r, Stalling? and Wife y 491 
 
 Frazer, adm'r, Lester, iidm'x, v 529 
 
 Frazier and others r. Frazier's ex'rs. 304 
 Freer and others, Wilson and Wife i;. 650 
 Fryer and Wife y. Bryan 66 
 
 G 
 Giles, Caldwell, adm'r, v 548
 
 TABLE OF CASES. 
 
 Gist r. Pressley and others 318 
 
 Gist V. Davis and otliets 335 
 
 Gist, adm'r, Robinson and others v., 4G7 
 
 Givens, Gray v 511 
 
 Glover and others, Horry and Tra- 
 
 pier, trustees, v 515 
 
 Gordon, adm'r, v. Stevens 46 
 
 Gordon, adm'r, Sarter and Wife and 
 
 others v 121 
 
 Gordon, adm'r, v. Stevens 429 
 
 Gray, ex'ors, of, v. Kumph 6 
 
 Gray r. Givens 511 
 
 Gray, adm'r, and heirs of, Ward- 
 law V 644 
 
 Guess and others, Matheney v 03 
 
 H 
 
 Hair and Black, Black v 022 
 
 Hamlin, Kinloch, ex'or, v lU 
 
 Hargroves and Wife v. Meray and 
 
 Wife 222 
 
 Harley and Wife v. De Witt 807 
 
 Heard, Ec parte 54 
 
 Heath t'. Heath and others 100 
 
 Hinson, adm'r, v. Pickett 351 
 
 Holmes, Parker v 95 
 
 Horry and others, Deas and Wife v.. 244 
 Horry &Trapier, trustees, v. Glovers 
 
 and others 515 
 
 Hunt, Jordan u 145 
 
 Hunter's adm'rs, and heirs, Brunson 
 
 and Wife v 483 
 
 I 
 
 Inabnit, Jackson and others, v 411 
 
 J 
 
 Jackson and others v. Inabnit 411 
 
 Jacobs, Perryclear w 5U4 
 
 Jenkins, ex'trix, and another, Monk, 
 
 adm'r, v 9 
 
 Johnson, adm'r, and others, Conner 
 
 adm'r, and others, v 41 
 
 Johnson, Adm'r, of, v. Ex'ors of 
 
 Johnson 277 
 
 Johnson, Britton and Wife v 430 
 
 Johnson and others. King v 024 
 
 Jones and Briggs v. Blake and Wife. 029 
 Jordan r. Hunt 145 
 
 K 
 
 Keckley's adm'r, v. Keckley's ex'or 250 
 
 King u. Clarke Oil 
 
 King and others v. Johnson and 
 
 others 624 
 
 Kinloch, es'or, w Hamlin 19 
 
 Kinsler «. Clarke 017 
 
 L 
 
 Leith, ex'or, Patterson v 15 
 
 Lester, adm'x, v. Frazer, adm'r 529 
 
 Lever t;. Lever 158 
 
 Lindsay, adm'r. Brown and Wife v. 542 
 Longworth, Thackum and Wife and 
 others v 207 
 
 M 
 
 ^lartin, Bx parte 71 
 
 Massey i\ Massey and others 492 
 
 Massey r. ^I'llwain and others 421 
 
 Matheney v. Guess and others 03 
 
 May and others. Walker, adm'r, v... 22 
 Meray and Wife, Hargroves and 
 
 Wife V 222 
 
 IVIesservey and others t>. Barelli 507 
 
 M'Cartnoy & Gordon v. Pogson and 
 
 Wife 180 
 
 M'llwain and others, Massey v 421 
 
 JM'Mui'in, adm'r, y. Brown 457 
 
 M'Meekin v. Brummet 038 
 
 Middleton, Fogg and Wife v 591 
 
 Miller, Com'r, Ex parte 378 
 
 Monk, adm'r, v. Jenkins, ex'trix, 
 
 and another 9 
 
 IMorse, Sumter, adm'r, v 87 
 
 Muldrow and Bruce v. Dubose and 
 
 others 375 
 
 Mulligan, ex'or, Bryan v 361 
 
 Murray and Wife, Thompson and 
 
 Wife V 204 
 
 Muse and Wife, Edgerton and others 
 
 V 51 
 
 Myers, adm'r, v Pickett 351 
 
 N 
 
 Nash V. Savage and Nash, ex'ors.... 50 
 Nickols and others, Bryson, adm'r, v. 113 
 Niolon V. Douglass and others 443 
 
 P 
 
 Palmer, Ex parte 215 
 
 Parker, ex'trix, v. Creditors of Par- 
 ker 35 
 
 Parker y. Holmes 95 
 
 Patterson v. Leith, ex'or 15 
 
 Peay, adm'r, v. Fleming and others. 97 
 
 Perryclear v. Jacobs 504 
 
 Pickett, Hinson, adm'r, v 351 
 
 Pickett, Myers, adm'r, v 351 
 
 Pickett t'. Pickett 470 
 
 Pogson and Wife, M'Cartney & Gor- 
 don V ; 180 
 
 Porteus and others, Barnwell and 
 
 others v 219 
 
 Pressley and others. Gist i; 318 
 
 Price, adni'rs of, Sinclair ^ Kiddle 
 V. [note) 160 
 
 R 
 
 Reid, adm'r of. Cooper v 549 
 
 Ridgell V. Bethea 365 
 
 Robinson and others v. Gist, adm'r. 467 
 
 Rose and others, Seabrook v 553
 
 TABLE OF CASES. 
 
 Ruff, adm'r, and others, Davidson, 
 
 surv'ng ex"or, v 140 
 
 Rumph aud others, ex'or of Allen v.. 1 
 
 Rumph, Ex'ors of Gi"ay v 6 
 
 S 
 
 Sarterand Wife, and others, v. Gor- 
 don, adra'r 121 
 
 Savage and Nash, ex'ors, Nasli v.... 50 
 
 Seabrook v. Rose and others 553 
 
 Seibels v. Whatley and others ttOo 
 
 Seigling, ex'or, Esswein v COO 
 
 Sherman v. Angel, ex'or 'li'y 
 
 .Sims I". Sims, mlm'r 61 
 
 Sinclair and Kiddle v. Adm'rs of 
 
 Price, {note) IGO 
 
 Singleton, Chewning v 371 
 
 Smithy. Smith 112 
 
 Spann & Jennings v. Spann 152 
 
 Stallings and Wife v. Foreman, 
 
 adm'r 401 
 
 Stevens, Gordon, adm'r, v 46 
 
 Stevens, Gordon, adm'r, v 429 
 
 Sumter, adm'r, v. Morse 87 
 
 T 
 
 Taylor, Crispin y. [7iote) 434 
 
 Thackum aud Wife v. Longworth.... 267 
 
 Thompson and Wife i'. Murray and 
 
 Wife ' 204 
 
 Thompson, adm'r, w. Buckner 4'. 'j 
 
 Toomer, Union Bank r 1^7 
 
 ']' rapier atid others. Bank v 'Jo 
 
 Thynes, Adm'rs of, Wurtz i' ]7l 
 
 U 
 
 Usher and other, Welsh v ]f.7 
 
 Union Bank i;. Toomer ::7 
 
 V 
 Valk and Wife and others, Vcrnfm 
 
 & Co. j; 257 
 
 Vaughan, guardian, Ex'ors, of White 
 
 V 329 
 
 Vernon & Co. v. Valk and Wife and 
 others 257 
 
 W 
 
 Walker, adm'r, v. May and otlier.=.. 22 
 Wardlaw v. Adm'rs and Heirs of 
 
 Gray 644 
 
 Welsh w. Usher and others 107 
 
 Whatley and others, Seibels v GOo 
 
 White, ex'rs of, v. Vaughan, guar'n . 329 
 
 Wiley, Ep. Church of Macon, v 584 
 
 Wilson and Wife v. Freer and others. 550 
 
 Wurtz, adm'rs of, v. Thynes 171 
 
 YoL. I.— 24
 
 CASES IN CIIANCEIIY 
 
 ARGUED AND DETERMINED IN THE 
 
 COURT OF APPEALS OF SOUTH CAROLIXA, 
 
 CbarlEslon— parclj anb |ipnl, 1834. 
 
 JUDGES PRESENT. 
 
 Hon. DAVID JOHNSOX, Presiding Judge. 
 Hon. J. B. O'NEALL. ] Hon. WILLIAM HARPER. 
 
 Joel W. Green, Ex'or of Benj. J. Allen, v. George Rumpii and 
 others, his creditors. 
 
 Contracts in consideration of marriage, are greatly favored in Chancery, and as 
 between the parties themselves, and others falling within the express objects of 
 the contract, they will be enforced according to the obvious intent, however in- 
 formally or irregularly they may have been executed; and that, although they 
 may have been rendered inoperative at law by the intermarriage of the parties. 
 («) [*3] 
 
 In contemplation of marriage, defendant executed a deed, in which, after reciting 
 the intended marriage, he conveyed, directly and without the iutervention of a 
 trustee, to his intended wife, "all the estate which she was entitled to of her first 
 liusbaud," consisting of slaves and other personalty, to her, "her heirs, adminis- 
 trators and assigns." The marriage was afterwards solemnized, and defendant 
 and his wife went into possession of tlie property. After the death of the wife 
 without issue of that marriage, on a' bill filed by a son of the wife's first marriage, 
 it was held, that in Equity, the deed will be regarded as a marriage settlement in 
 trust for the wife and her heirs at law, that the marital rights of the husbjiiid 
 ■would not attach, and consequently that he took only his distributive share as 
 heir at law. [*4] 
 
 The Act of 179:.', 1 Faust, 209, requires all marriage contracts, &c., kc, to particu- 
 larize the property intended to be settled, or to have a schedule of tlie same 
 annexed: a description of the property in a marriage settlement as that to which 
 the wife "is entitled under the will of her husband J. A. or to which she may ho 
 entitled independent of the will," is not a compliance with the net, and the 
 settlement is void as to the creditors of the husband subsequent to the niarringe. 
 [*5] 
 
 Josiah Allen died about IIOG, having before made and executed his 
 last will and testament, by which he bequeathed his whole estate, coii- 
 
 (rt) Smith V. Maxwell, Ex'or, 1 Hill Ch. 101.
 
 8 SOUTH CAROLINA EQUITY REPORTS. [*1 
 
 sisting of slaves and other personalty, to be equally divided between liis 
 wife, Janet Allen, and his two sons, Benj. J. Allen and Wna. W. Allen. 
 William died some time after, in his infancy, and consequently without 
 issue, and intestate, so that his portion of the estate, which then remained 
 undivided, descended to his mother, Janet, and his brother Benjamin, the 
 whole of which remained in the possession of Janet, the mother. 
 
 In 1804, and subsequently to the events above referred to, Janet Allen 
 entered into a treaty of marriage with the defendant, Geo. Rumph, and 
 in contemplation of the marriage, they joined in the execution of a deed, 
 which was duly recorded in the office of Secretary of State. In this 
 ^gn deed is recited an agreement, "that ^previous to the performance of 
 
 -J the said intended marriage, the said George Rumph should assign 
 and make over all and singular the property or possession that the said 
 Janet Allen is or may be entitled unto by virtue of the said will of the 
 said Josiah Allen, likewise all and singular the property and possession 
 which she now has, or is entitled unto, independent of the said will, with 
 the increase of slaves, stock, &c., to the said Janet Allen, her heirs, exe- 
 cutors and assigns " And reciting the intended marriage, and a nominal 
 sura paid as the consideration, the deed proceeds thus : " The said George 
 Rumph hath bargained, sold, and by these presents doth bargain, sell and 
 set over to the said Janet Allen, her heirs, executors, administrators and 
 assigns, all the said legacy, so bequeathed by the said Josiah Allen, and 
 all and singular any other species of property belonging to the estate of 
 the said Josiah Allen, or which she, the said Janet Allen, is or may be 
 entitled unto, with all the increase of slaves, stock, &c." 
 
 The marriage was solemnized in 1805, the year following the execution 
 of this deed, and the parties lived together in the joint possession and 
 use of the entire estate of Josiah Allen, (for it was yet undivided,) until 
 1816 or 1817, when they separated, and Rumph, the husband, went 
 abroad and engaged in the business of overseering ; and shortly after (about 
 1818) the estate was divided between Janet, the wife, and her son Ben- 
 jamin ; and she, with her portion, went to live with a relation. Janet 
 died in 1828, but before that time the defendant had possessed himself of 
 some of the slaves, and after her death, administration of her estate was 
 granted to him, and he took possession of the others. As a circumstance, 
 going to show that the defendant regarded this estate as the separate 
 property of his wife, it is stated that he was arrested for debt in 1814, 
 and intended to apply for the benefit of the insolvent debtor's act, he 
 made a schedule, of his effects and estate, on oath, in which no part of 
 this estate was included, and it is conceded that he is now insolvent. 
 
 After the defendant had possessed himself of all the negroes, they were 
 taken in execution by the sheriff, to satisfy judgments against him to a 
 large amount, and the original bill in the case was filed by the plaintiff's 
 testator, who survived his mother, to enjoin the creditors from selling the 
 negroes, and to have their possession restored ; but in the bill of revivor, 
 filed by the plaintiff, it is stated that they have been since sold by agree- 
 ^o-| nieut, *and the proceeds deposited with the attorney of the judg- 
 
 -■ ment creditors, subject to the final decree of the Court, without 
 detriment to the rights of any of the parties. 
 
 The plaintiff claimed the fund for his testator, as sole heir of his deceased 
 mother. Rumph, the defendant, claimed it in virtue of his marital rights.
 
 *3] CHARLESTON, MARCH, 1834. 9 
 
 If his claim is valid, his creditors are of course entitled ; but whether it is 
 or not, it is insisted for them, that the deed is void as to creditors, because 
 it contains no particular description of the property intended to be settled, 
 either in itself or by a schedule attached, as required by the Act of 1792. 
 The case \yas heard before Chancellor Johnston, at Walterborough, 
 January, 1834, who held, that the deed executed by Rumph ])rcvions to 
 his marriage, interposed no barrier against the operation of the marital 
 rights upon his subsequent marriage and obtaining possession of the ])ro- 
 perty, and decreed accordingly. From this decree the plaintiff appealed, 
 on the ground : that the deed, executed by Rumph, divested him of his 
 marital rights, and vested an absolute separate estate in his intended 
 wife. 
 
 Johnson, J. It will not be questioned that the legal estate in the 
 property of the wife vested in the husband on the marriage. At the time 
 of the execution of this deed, the property which it professes to convey 
 to her was her own, consequently the defendant, Rumph, had no interest, 
 and could convey none, so that, in a legal point of view, the deed was a 
 nullity. The result would have been the same if the property had been 
 in the defendant, Rumph, and by him conveyed to his intended wife ; all 
 the personal goods of the wife, from whatever source the title may I)e 
 derived, vest absolutely in the husband on the marriage. But contracts 
 in consideration of marriage are greatly favored in chancery, and as 
 between the parties themselves, and other persons falling within the 
 express objects of contract, they will be enforced according to the obvious 
 intent, however informally or irregularly they may have been executed ; 
 and that, although they may, as in this case, have been rendered inope- 
 rative at law by the intermarriage of the parties, and equity will regard 
 that as already done which ought to have been done, to give full and 
 legal effect to the intention of the parties. 
 
 *These rules are sanctioned by this Court in Colclough and Wife p^ , 
 V. Colclough, administrator of Carolan, decided at Columbia, at ^ 
 May Term, 1831, which in most of its features bears a striking analogy 
 to the case in hand. Philip (Carolan and Mary Davis, in contemplation 
 of marriage, entered into an informal agreement, by which it was provided 
 that the property of the intended wife should be settled to the use of the 
 children of the marriage, and in default of children, to the use of the wife 
 for life, and at her death, to such person as she might devise it, without 
 providing for the case of her dying intestate, and she was declared Iiy the 
 deed to be the sole trustee of the property. The marriage was had, and the 
 wife, Mary, died without any issue of the marriage and intestate. The hus- 
 band survived the wife and retained possession of the property until his 
 death, which occurred sometime after. He left neither wife nor any other 
 known relation, and died intestate. The question was, whether the property 
 Avas distributable amongst the heirs of the wife or vested in the husltand and 
 escheated for the want of heirs, and it was held that the heirs of the wife were 
 entitled to take by descent. And my brother Harper, who then presided 
 in the Court of- Chancery, after laying down the rule that marriage articles 
 will be carried into effect in Chancery by pursuing the intention of the 
 parties so far as the rules of law will permit, remarks, "that if the parties 
 themselves had executed that agreement by conveying to trustees to hold
 
 10 SOUTH CAROLINA EQUITY EEPORTS. [*4 
 
 to the separate use of the wife for life, remainder to the children of the 
 mavriap:e, remainder in default of children, to such person as the wife 
 might appoint, without any further disposition, the undisposed of equitable 
 remainder must have continued in the wife herself," and would, in effect, 
 have operated as a limitation to her right heirs and legal representatives, 
 in the event of her failing to make the appointment. 
 
 Informal and inartificial as the deed under consideration certainly is, 
 there is no question about the intention of these parties. Janet Allen 
 was possessed of slaves and other personalty bequeathed to her by her 
 deceased husband, and was about to enter into matrimony with the 
 ^--j defendant, Rumph. He, reciting the intended *marriage, under- 
 '^-' takes to convey this property to her, and regarding the terms her 
 heirs, executors, adminidrators and as^/igns, as only expressive of the 
 quantity of the estate intended to be conveyed, and not as a limitation 
 over, it covers the entire, the absolute estate. To give effect to this con- 
 tract at law, the conveyance ought to have been to some third person as 
 trustee for these uses, but equity presumes that done, which ought to 
 have been done, and in adjusting the rights of the parties in this Court, 
 we must suppose that the intended husband and wife, George Rumph 
 and Janet Allen, had joined in a deed conveying this property to some 
 third person, in " trust for the said Janet, her heirs, executors, adminis- 
 trators and assigns." In that case, it is obvious that the marital rights 
 of the husband could not attach, because the property was in another, 
 and not in the wife. It could not attach after the death of the wife, 
 because the bond which united them, and conferred on the husband a 
 light of property in her goods, unless as an heir, was dissolved on the 
 instant of her death. It is true, as in the case of Colelough and Wife v. 
 Colclough, Administrator, the heirs of the wife, as between themselves 
 and the husband, are entitled to have distribution of the estate, and under 
 the Act of 1791, the defendant, the husband, is entitled to one-third, and 
 the plaintiflTs testator, her surviving son, to the remaining two-thirds. 
 
 According to this view of the case, the creditors of the defendants 
 would only be entitled to his one-third part of the fund. But the Act of 
 1792, (1 Faust, 209,) declares that all marriage contracts, deeds or set- 
 tlements, shall specify and particularize the property intended to be 
 settled, or shall have a schedule thereunto annexed, containing a parti- 
 cular description of it, and in default of such schedule, they are declared 
 to be fraudulent, null and void, with respect to and against creditors, and 
 ho n a fide purchasers and mortgagees; with a proviso, that the settlement 
 should be good notwithstanding, as to debts contracted by the husband 
 before marriage. In this deed, the property is described, as that " to 
 which Janet Allen is entitled to, under the will of her husband, Josiah 
 Allen, or to which she may be entitled, independent of the will;" cer- 
 tainly not corresponding with the particularity intended by the Act, nor 
 is there any schedule connected with it, containing a more certain 
 description. It is therefore void as to creditors. 
 
 The creditors claiming, are, according to a list of judgments, which 
 has been brought up here, all for debts contracted subsequent to the 
 5j.„-| marriage. It is therefore ordered and decreed, that *one-third of 
 
 -• the fund in the hands of the attorney for the creditors, be applied to 
 the payment of the debts, according to "their legal priority, and if that
 
 *6] CHARLESTON, MARCH, 1884. I I 
 
 should satisfy all the debts, that the reiiiaiuiug two-thirds be jiaid ovlt 
 to the plaintiff; but if the one-third shall be insuiiicieut to pay the debts, 
 the remaining two-thirds, or so much thereof as may be necessary, lie 
 applied to the payment of the remaining debts according to their legal 
 priority, and the balance, if any, be paid to the plaintiff. 
 
 Harper, J., concurred. 
 
 Elmore and Udivards, for the appellant. 
 
 MemmiiKjer and King, contra. 
 
 Executors of Alexander Gray, deceased, v. George Rumph. 
 
 A paper with blanks as for a penal bond, tlie condition only filled up witli the sum 
 but not the name of the obligee, dated, and signed by the defendant, under 
 the circumstances of the case, perfected and set up as a bond, and payment de- 
 creed. [*8] 
 
 Colleton, January Term, 1834. — Before Chancellor Johnston. 
 The object of this bill was to perfect and set up the following paper as 
 a bond, and to compel the payment thereof. 
 
 State of South Carolina : 
 
 Know all men by these presents, that held and 
 
 firmly bound unto in the full and just sum of 
 
 certain attorney, executors, administrators or assigns. To which pay- 
 ment, well and truly to be made and done, I bind myself, and each and 
 every of my heirs, executors and administrators, firmly by these presents, 
 sealed with my seal, and dated the twenty-fourth day of June, A. D., one 
 thousand eight hundred and twenty, and in the forty-fourth year of 
 American Independence. 
 
 The condition of the above obligation is such, that if the above bound 
 heirs, executors or administrators, shall and do, well and 
 truly pay, or cause to be paid unto the above-named certain 
 
 attorney, executors, administrators or assigns, the full and just sura of 
 ten hundred and thirty-one dollars twenty-four cents, with interest from 
 the date, on or before the first day of January, which will be in the year 
 of our Lord one thousand eight ^hundred and twenty-one, without p^. 
 fraud or further delay, then the above obligation to be void and of L 
 none effect, or else to remain in full force and virtue. 
 
 George Ru.mph, [l.s.] 
 
 Signed, sealed and delivered"^ 
 in presence of ) 
 
 The bill states that, as appears by the books of the plaintiffs' testator, 
 who was a merchant, the defendant was indebted to him $1031 24, whicii^ 
 sum, according to an entry in the books, is credited in full, by ))ond of 
 the date of the foregoing. That the practice of the testator was to take 
 such bonds for debts due to him, which were afterwards filled up ; and
 
 12 SOUTH CAROLINA EQUITY REPORTS. [*7 
 
 that this paper, corresponding in amount and date with the books, was 
 intended by the parties as a bond, and to be in settlement of that 
 account. 
 
 The answer of the defendant admits that he signed the paper, but 
 denies that it was intended or considered as a bond, but that he signed 
 it at the request of Gray, merely, as he said, to close the books, and that 
 they would come to a settlement at some future day. That he had 
 demands against Gray, by which he considered the book account fully 
 paid. Tliat the paper in question wants the legal requisites of a bond, 
 and to establish it as such, would opei'ate as a fraud on him ; and if it 
 is not so established, the statute of limitations is a bar to the demands 
 against him. 
 
 It was admitted that there was an entry on Gray's books against the 
 defendant for $1031 24, and that he is there credited as stated in the bill. 
 And the plaintiffs further showed, that in 1808, the defendant confessed 
 a judgment to Gray, on a paper purporting to be a bond and so described 
 in the declaration, filled up in the same manner and with the same omis- 
 sions as that now in question. 
 
 The Chancellor held, that according to the decisions of our Courts, 
 such a paper as that now attempted to be set up is void at law ; and 
 that the equity to set it up is sworn off by the answer, there being no 
 sufficient proof to the contrary. He accordingly dismissed the bill. 
 
 The plaintiffs appealed on the ground, that under the circumstances of 
 the case, the Chancellor should have established the instrument as a bond 
 and decreed payment thereof. 
 
 Meviminger, for the appellants, contended, that the books of the 
 ^n-j plaintiffs' testator proved the existence of the debt, which should *be 
 
 ■^ disproved by other evidence than the answer: that the signature to 
 the paper being admitted, it was manifest, notwithstanding the answer, 
 that the parties regarded it as a bond ; and it is the province of a Court 
 of Equity to supply accidental omissions or mistakes in form, in the exe- 
 cution of writings. Finch v. Finch, 1 Ves 545; (Jillespie u. Moon, 2 
 John. Ch. 585 ; "5 Ves 557 ; 3 Br. C. C. 229 ; 2 Eq. Rep. 115 : 8 lb. 
 84 ; 1 Day's Ca. Er. 139. 
 
 Elmo7'e and JSchcards, contra. 
 
 O'Neall, J. In any point of view in which we consider this case, it 
 seems to me that the plaintiffs are entitled to relief. 
 
 The defendant signs and seals a paper with blanks for a penal bond, 
 dated 24th June, 1820. Underneath is a condition to pay to 
 
 the sum of $1031 24, with interest from the date on or before the 
 1st January, 1821. Can there be a doubt that he intended it as a bond ? 
 The intrinsic evidence of the thing itself, shows that it was so intended ; 
 a delivery is to be presumed from the fact that it is found in the posses- 
 sion of the testator ; indeed the defendant's answer does not deny that it 
 was delivered. If the condition had contained the name of the obligee, 
 I should have thought it a perfect single bond. As it is, it can have no 
 legal effect. _ The only question is, whether equity will perfect it ? The 
 defendant's intention to execute it as a penal bond with a money condi- 
 tion underwritten, is, as I have already shown, apparent. That the
 
 *8] CHARLESTON, MARCH, 1834. 13 
 
 plaintiffs' testator received it in the same cliaractcr, is manifest, from the 
 entry of credit in his books of tlic same date and for a like sum. Tut 
 the case, tlierefore, upon the footing of either mistake or agreement, and 
 the plaintiffs would have the right to have the blanks filled up, and the 
 bond thus perfected as a legal instrument. It is said, however, that this 
 cannot be done, inasmuch as the defendant in his answer denies that it 
 was intended or considered as a bond. This is fully contradicted ))y the 
 paper itself and the testator's books, and cannot be allowed to prevail 
 against them. 
 
 But concede that the case must be judged of by the defendant's answer. 
 He has admitted that he signed the paper exhibited, and that it was 
 intended by Gray and himself to stand merely as a memorandum of a sum 
 assumed to be due, so that the books might *be closed, and tliat r-^^. 
 the amount really due was to be settled at a future day. In this L 
 point of view, he has admitted enough to entitle the plaintiffs to recover. 
 The admission of the signature carries with it an admission of the seal, un- 
 less the latter had been denied. The defendant in his statement impliedly 
 admits a delivery to the testator, Gray ; so, that, by specialty, he admits 
 that the sum of $1031 24 is due to the testator, unless it should be 
 reduced by the proposed future settlement. This makes the paper, when 
 the intention of the parties is carried out, a bond for $1031 24. 
 
 There is, in this view of the case, no pretence upon which the plea of 
 the statute of limitations can be supported. 
 
 It is ordered and decreed, that the Chancellor's decree be reversed ; 
 that it be referred to the commissioner to ascertain and rejiort whether 
 any and what sums are due to the defendant by the plaintiffs' testator, 
 and that such sums, at the day when due, be deducted fro_m the amount 
 admitted to be due by the paper of the 24th June, ISgO, which is 
 hereby set up as the bond of the defendant ; and to report whatever 
 balance may still be due to the plaintiffs by the defendant, on account 
 of interest as well as principal due on the said bond, which balance, 
 together with the costs of this suit, the defendant is hereby decreed to 
 pay. 
 
 Johnson and Harper, Js., concurred. 
 
 John W. Monk, Administrator of Judy, v. Elizabeth M. Jenkins, 
 Executrix of John Cato Fields and John S. Fields. 
 
 ■When a statute authorizes a proceeding not before allowed by law, and prescribes 
 the mode in which it shall be done, the mode pointed out must be strictly pursued 
 or the proceeding will be void: but when a proceeding is permitted by the general 
 law, and a statute directs a particular form in which it shall thereiifter be con- 
 ducted, it will depend on the terms of the statute whether it is merely tliroctory, 
 subjecting the parties to some disability if it be not complied with, or shall render 
 the proceeding void. [*12] 
 
 Before the Act of 18110, emancipation was permitted in anyway in which the mnster 
 might signify his intention. — That statute does not render any act of emancipation 
 which does not conform to its provisions void, but merely subjects the shiyc so 
 illegally emancipated to seizure; and until seizure, the slave emancipated will be 
 regarded as free. [*13]
 
 14 SOUTH CAROLINA EQUITY REPORTS. [*9 
 
 The delivery of a deed of emancipation, .ifter lonp; lapse of time, and the enjoyment of 
 rights under it may be presumed; but tlie only delivery contemjilated by the Act 
 of 1800, is the lodging it with the clerk to be recorded, and it is the duty of the 
 master to lodge it. ['"14] 
 
 Lodging a deed of emancijintion with the clerk, is a suflBcient recording; and ■with 
 respect to any person seizing the slave, if the deed was in the office at the time 
 of seizure, the presumption would be that it was lodged in due time. [*14] 
 
 Colleton, January, 1834. — Before Chancellor Johnston. 
 
 This bill was filed by the plaintiff, as the administrator of Judy, a 
 woman of color, formerly the slave of John Cato Fields, deceased. It 
 states that the said John Cato Fields, being the lawful owner of Judy, 
 on the 14th April, ISOG, executed a deed of manumission, by which Judy 
 was emancipated and set free. A copy of the deed, with the examination 
 before a justice, and the certificate prescribed by the Act of Assembly, 
 were filed as exhibits to the bill. That John Cato Fields, died in 1817, 
 leaving a will, in which he bequeathed certain slaves and other property 
 ^-.^-1 to Judy, *and appointed one Hughes her trustee, and that after 
 -J the death of the testator, his executors put Judy in tiie possession 
 of the legacy. Shortly after the death of Fields, both Judy and Hughes, 
 her trustee, died, and the defendant, Elizabeth M. Jenkins, who is now 
 the executrix, and John S. Fields, who intermarried with the residuary 
 legatee, are now in possession of the property, and refuse to deliver it up. 
 The bill prays an account for rents and profits, and the delivery of the 
 property. The defendants pleaded: 1. That John Cato Fields never 
 executed such deed as is required by the Act of 1800, prescribing the 
 form of emancipation. 2. That no such deed has been recorded within 
 the time prescribed by the Act. . 
 
 On the hearing of the case, the Clerk of the Court was examined as a 
 witness, and testified that he found the deed among the papers of the 
 office, labelled, and an endorsement in the handwriting of a former clerk, 
 specifying its contents, but not indicating the time it was delivered to 
 him. There was no evidence given that the deed was delivered within 
 the six months prescribed by law. 
 
 The Chancellor dismissed the bill for want of jurisdiction, inasmuch as 
 it made a proper case for relief at law; but he overruled both pleas. 
 The defendants appealed from the decision of the Chancellor on the 
 pleas, and make the further ground : That the plaintifis has no civil 
 status, and cannot therefore maintain his bill. 
 
 Memminger, for the appellants, insisted that, by the law of this State, 
 (P. L. 163,) every person of color is presumed to be a slave, and the 
 onus of proving freedom is thrown on the plaintiff, and this can only be 
 done by showing a strict compliance with the Act of 1800, (2 Faust. 
 3.00,) prescribing the form of emancipation. One requisite of the Act is, 
 that it must be by deed, and to constitute a deed there must be a delivery. 
 Shep. Touch. 5Y. Delivery to the slave would not be sufficient, for there 
 must be a party capable of being contracted with, and accepting the 
 deed. Shep. Touch. 55 ; Co. Lit. 35, b. And a slave is not a person 
 in law, but a mere chattel. The Act requires a copy of the deed to be 
 delivered to the emancipated slave, and this may be regarded as equiva- 
 lent to delivery at common law ; but there is no evidence that a copy was 
 so delivered. Delivery of some sort is essentially requisite to perfect the
 
 *]0] CHARLESTON-, MARCH, 1834. 15 
 
 act of emancipation. The deed must be ^recorded within a pre- j.^.. 
 scribed time ; but there is no probate on the deed, without which l 
 it could not be recorded, and if the lodgment with the clerk be regarded 
 as a sufficient recording, nevertheless, it should appear that the lodging 
 was within the prescribed time. Cited 2 Con. Rep. 12 ; 1 Bail. 42 i ; 2 
 Hen. & Munf. 467. 
 
 R. B. Smith, contra. The deed is now twenty-eight years old. J. C. 
 F. lived eleven years after its execution, and so far from calling it in 
 question, he recognized it in his will. The person for whose benefit it 
 was made, in her life-time exercised rights under it. She is now dead, 
 and her children and grandchildren are now interested. Under these 
 circumstances, the Court will presume a delivery of the deed, if that be 
 necessary— that it was legally recorded, or delivered to the clerk, within 
 the prescribed time — in short, everything which may be necessary to give 
 it effect. The Act requires an attested copy to be furnished to the slave, 
 and it would seem, by implication, to be the duty of the clerk to retain 
 the original, and recording will be presumed. 3 Harris & M'H. 102. 
 Delivering a deed to the recording officer is regarded as recording. 
 Marbury v. Madison, 1 Cranch, 161; Kirby, 72; 1 Marshall, 306. 
 Under the Act, it is made the duty of J. C. F. to have the deed re- 
 corded, and a copy delivered. He, or those claiming under him, cannot 
 be permitted to take advantage of his wrongful neglect of duty, in order 
 to avoid his own deed. If the heir prevent the due execution of a will, 
 equity will relieve. So also if the executor prevent the execution. 
 There are numerous cases in which equity will relieve against neglect to 
 conform to a statute, especially when there is no blame in the party to 
 be benefited. 2 East. 399 ; 11 East, 030; 1 D. & E. 734; 6 Ves. 743; 
 11 Yes. 623, 645. 
 
 Grimke, in reply, argued that emancipation is now an act of sove- 
 reignty, which the Legislature have taken into their own hands : \i fixes 
 the status of the person emancipated, and gives him a new relation to 
 the community. This is then a question of public policy, and not one 
 merely of meura and tuum ; and it behooves the Court to see that the 
 forms of law have been complied with, otherwise persons may exercise 
 civil privileges who are not entitled to them. The presumption of law is, 
 that Judy was a slave. Act of Assembly, 1740 ; 2 Bibb. 238 ; 3 Am. Pig. 
 484. And to rebut this presumption, it must be shown on her ]iart that 
 the Act of 1800, which prescribes the forms of emancipation, has been 
 ♦strictly followed. The Act requires it to be done by deed, and j-^j2 
 without delivery there can be no deed. It may not be necessary ^ 
 that the delivery should be to Judy. Perhaps the magistrate might 
 accept it. But no deliverv is proved. As to the recording, whose duty 
 was it to have the deed recorded ? By the delivery, the master parts 
 Avith the possession of the deed, and it cannot, therefore, be his duty to 
 have a paper recorded which is not in his possession. Those who are 
 interested are bound to have it recorded. The attested copy is to serve 
 between the master and slave ; the recording is a matter between the 
 slave and the public, and is essential to the validity of the act. Is the 
 delivery to the clerk tantamount to recording ? It may be so, it the deed 
 be ready for registration, and be delivered in proper time ; but to
 
 16 SOUTH CAROLINA EQUITY REPORTS. [*12 
 
 authorize recording, tbeve must have been a probate, (1 Brev. Dig. 316,) 
 which there was not. If lodging it with the clerk be recording, it should 
 be shown to have been done within the legal time ; for if it was delivered 
 to him within the time, he was bound to enter it, otherwise he was not. 
 The presumption is against the slave, and applies to everv doubtful fact. 
 Cited 1 Pennington, 10; 3 Am. Dig. 477-8, 485; 19 John. Rep. 53. 
 
 Harper, J, The appeal is only from so much of the decision of the 
 Chancellor as overrules the pleas of the defendant. In this respect we 
 agree with the Chancellor. He reports that the woman, Judy, had the 
 uninterrupted enjoyment of freedom from the date of the deed to her 
 death, and was recognized as a free person by the will of her former 
 owner, John Cato Fields. Under these circumstances, I am of opinion 
 that neither John Cato Fields, nor any person claiming as a volunteer 
 under him, could dispute the validity of the emancipation, even if there 
 had been no deed. 
 
 When a statute is passed authorizing a proceeding, which was not 
 allowed by the general law before, and directing a mode in which the act 
 shall be done, here the mode pointed out must be strictly pursued. It is 
 a condition on which alone a party can entitle himself to the benefit of 
 the statute, that its directions shall be strictly complied with ; otherwise 
 the proceeding will be void. But when a proceeding is permitted by 
 ^■loi the general law, and an *Act of the Legislature directs a parti- 
 -' cular form and manner in which it shall be conducted, then it will 
 depend on the terms of the Act itself, whether it shall be considered 
 merely directory, subjecting the parties to some disability if it be not 
 complied with, or whether it shall render the proceeding void. If no 
 emancipation were permitted, (as the law is at present,) and an Act of 
 the Legislature should permit owners of slaves to emancipate them in 
 some prescribed form, if the form were not complied with, the Act would 
 be void. But the several Acts of the British Parliament directing that 
 public officers shall not enter on the duties of their office until they shall 
 have taken the oaths to government, have been construed not to render 
 their official acts void if they will take upon themselves to act, but to 
 render the officer personally responsible for a violation of law. There 
 are a great number of instances of the same sort. 
 
 It is to be recollected that before the Act of 1800, which is now in 
 question, emancipation was permitted in any manner by which the master 
 might signify his intention to emancipate. The Act prescribes that after 
 its passage " it shall not be lawful for any person or persons to emancipate 
 his, her or their slave or slaves, except according to the forms and regu- 
 lations hereinafter prescribed," &c. If the Act had stopped here there 
 might be ground to contend that the act of emancipation would be void, 
 if not done in the manner prescribed. But the Act itself goes on to say 
 what the consequences shall be if the forms and regulations directed by 
 it are not pursued. A subsequent clause provides, that " in case any 
 slave shall hereafter be emancipated or set free, otherwise than according 
 to this Act, it shall and may be lawful for an}^ person w^hatsoever to seize 
 and convert to his or her own use, and to keep as his or her own property, 
 the said slave, so illegally emancipated or set free." Here is a plain 
 recognition by the Act itself, that slaves may be emancipated or set free,
 
 *13] 
 
 CHARLESTON, MARCH, 1834. 17 
 
 otherwise than according to its directions. On this view was founded 
 the decision of the Court, in Johnson v. Linani, 2 Bail. 137. "Where the 
 master had emancipated the slave in an irregular manner, it was held 
 that, however the slave might be liable to seizure under the terms of the 
 Act. the master's properety was divested, so that he could not maintain 
 au action to recover the slave. There can be no slave without a master, 
 and it follows, that after such irregular emancipation, until seizure is 
 actually made, the emancipated slave must stand on the *footing of r^^i . 
 any other free negro. In the case before us, the woman was never L 
 seized, and being now dead, never can be, Her legal representative has 
 the same standing in Court that the representative of any other free negro 
 would have. It is true that the presumption of our law is against a 
 negro's freedom, and that this is a question which concerns the public. 
 But the security of the public was provided for by subjecting the irregu- 
 larly emancipated slave to seizure. As between the slave and the master, 
 or those claiming under him, it is merely a question of individual right. 
 
 The view which I have taken might, for the purposes of the present 
 case, dispense with the necessity of considering the toi)ics which were 
 urged in argument with respect to the validity of the deed itself I shall, 
 however, advert to them very briefly. 
 
 Firsi, as to the delivery. I concur with the Chancellor, that if it were 
 necessary to rest upon presumption, there is enough to presume a delivery 
 of the deed. There is nothing in the Act to render a trustee or guardian 
 necessary. Before the Act, the very fact of executing the deed would 
 have rendered the slave capable to accept it. But from the terms of the 
 whole Act, I am satisfied that the only delivery contemplated was the 
 lodging of the deed with the clerk to be recorded. It is not to be sup- 
 posed that the maker of the deed, against whom it is evidence, shall be 
 the person to retain it. The emancipated slave is not to have it, for he 
 is to be furnished with a copy attested by the clerk, and it is made the 
 duty of the master, under a penalty, to deliver to him such copy, and con- 
 sequently, to deliver the deed to the clerk, who is to furnish and attest 
 such copy. 
 
 It would be useless to inquire, whether the provision of the Act, that 
 the deed shall be void unless recorded within six months, was intended 
 merely for the benefit of creditors and purchasers, or applies to the master 
 himself; as from the view I have taken, the master is bound by his act of 
 emancipation, independently of the deed. 
 
 Then supposing the deed to have been lodged within the time prescribed 
 by law, I am of opinion that this was a sufficient recording within the 
 meaning of the Act. The clerk is a public officer, directed to record 
 such deeds when lodged with him, and his neglect or omission would not 
 be permitted to work a prejudice to *third persons who were m r*^^ 
 no default. But, as was said in argument, recording does not 
 merely mean transcribing in a book. The rolls of Courts are records, 
 though not transcribed. The original furnishes at least as authentic evi- 
 dence as a copy, and if that be lodged in the office, there to remain as a 
 public document for the information of all who may inquire, this is a 
 sufficient recording, however proper and convenient it may be, that the 
 clerk should make a transcript-in a book kept for that purpose. 
 
 Then the deed being found iu the clerk's office, without any evidence
 
 18 SOUTH CAROLIXA EQUITY REPORTS. [*15 
 
 of the time when it was lodged, are we to presume it was lodged within 
 the time prescribed l)y law, or the contrary ? Without entering to rea- 
 soning on the subject, I incline to the opinion that with respect to any 
 person who should seize the slave, provided it appeared that the deed 
 was actually in the office at the time the seizure was made, the presump- 
 tion would be, that it was lodged in due time. With respect to creditors 
 and purchasers, I give no opiniou. 
 
 The motion to reverse the Chancellor's decision, is refused. 
 
 '■ Johnson and O'Neall, Js., concurred. 
 
 John C. Patterson v. S. W. Leith, Executor of William 
 Patterson. 
 
 Parol evidence is inadmissible to explain a Tvill except in a case of latent ambiguity, 
 
 P16] 
 A bequest in these words, "it is my •will that the sum of one hundred and fifty 
 
 dollars, be paid out of the profits, or moneys arising out of my estate, to my son 
 
 J. C, as a maintenance for him, for and during his natural life and no lon-er," 
 
 held to be an annuity. [*16] 
 
 Colleton. Before Chancellor Johnston, who delivered the following- 
 decree : 
 
 The bill in this case is filed to establish as an annuity, a legacy left by 
 the defendant's testator to the plaintiff, the bequest of which is in these 
 words : " It is my will, that the sum of one hundred and fifty dollars be paid 
 out of the profits or moneys arising out of my estate, to my son John C. 
 as a maintenance for him, for and during his natural life, and no longer." 
 
 The answer admits the bequest, but denies that it was intended as an 
 annuity, and contends that it is a mere pecuniary legacy for that gross 
 sum. 
 
 *1R1 *Upon the trial, the defendant's counsel offered as a witness the 
 -^ defendant, S, W. Leith, to prove that he* drew the will, and to 
 testify as to the intention of the testator. He was objected to by the 
 counsel for the plaintiff, and the Court sustained the objection, because 
 such testimony was considered as inadmissible as mere parol introduced 
 to explain the intent of a will, and because the witness was a party to 
 this suit, and the only defendant on the record. 
 
 The defendant's counsel then offered Malachi Ford as a witness, to 
 show the circumstances of the plaintiff at the time of the testator's death, 
 with a view to ascertain the intention of the testator. He was excluded 
 for the reason first above stated. 
 
 The cause was then argued on the bill and answer, and submitted to the 
 judgment of the Court. Upon examination of tlie clause of the will, under 
 which the plaintiff claims, it will be observed that the sum of one hundred 
 and fifty dollars is to be paid from "profits or moneys" arising from the 
 estate. The counsel has cited a number of cases, in which it has been 
 decided that the natural sense of these words is " annual profits ;" and I 
 think such a construction of the present bequest is much strengthened by 
 the other words used in it. For the testator not only bequeaths this sum
 
 *16] CHARLESTON, MARCH, 1534. 19 
 
 as a maintenance for his son, but he dechxres that it is to be for his natu- 
 ral life and no longer. Now, maintenance would seem to imply that it 
 
 is to be furnished from time to time as occasion would call for it the 
 
 maintenance of the son could not be accomplished by a single payment, it 
 necessarily required a new payment so often as each year of his existence 
 exhausted that which had been applied the preceding year. Besides, why 
 declare that it should be for his natural life and no longer 1 Are not 
 these words " no longer," a clear expression of what was in the testator's 
 mind, and is it not obvious that he must have contemplated a series of 
 payments which were only to be interrupted by the death of his son. 
 These considerations lead me to conclude that the bequest is an annual 
 sum for maintenance. 
 
 It is therefore ordered and decreed, that it be referred to the Commis- 
 sioner to ascertain the amount due to the plaintiff, for any arrears in the 
 payment of the said sum of one hundred and fifty dollars annually, to the 
 plaintiff", allowing interest thereon from the end of every year during 
 which the same was in arrear, and that so much of the amount so found 
 due be paid with the costs of suit to *the plaintiff's solicitors by ri^■,^. 
 the defendant, as the Commissioner shall report sufficient to pay '- 
 their costs and fees, and the remainder be paid to the plaintiff; and that 
 " the defendant be allowed the same from the estate of his testator. It is 
 further ordered and decreed that the sum of one hundred and fifty dollars 
 be hereafter paid annually by the said executor into the proper hands of 
 the said plaintiff, to be applied by him towards his maintenance and 
 support. 
 
 The defendant appealed from this decree on the grounds : 
 
 1. That Dr. S. W. Leith, who is a mere naked trustee, and admitted 
 to have no interest in the event of the suit, was rejected as a witness. 
 
 2. That defendant was not allowed to examine Mr. Ford and other 
 witnesses to prove that the testator's bounty must have failed because of 
 his insolvency, had he intended to give the plaintiff an annuity, 
 
 3. That the will only gives the plaintiff the sum of one hundred and 
 fifty dollars, and not an annuity of that amount. 
 
 Elmore, for the appellant, cited 2 John Ch. 550, 625-6 ; 3 lb, 566 ; 
 5 lb. 95 ; 2 Fonb. 4U4, 45T. 
 
 Memminqer, contra, on the two first grounds, cited 4 M'C. 24 ; Phil. 
 Ev. 474 ; Westbrook v. Harbison, 2 M'C. Ch. 112. On the last ground 
 he cited, 2 P. W. 19; I P. W. 219 ; 2 Ves. Jr. 481, note; 2 Ves. & 
 B. 65, 
 
 O'Xeall, J. The two first grounds of the motion may be considered 
 together ; for, notwithstanding the first ground presents a distinct question 
 whether Dr. Leith, as the defendant in the cause, was competent, yet it 
 will not be necessary to decide that question, if we should be of opinion 
 that, even if he was a competent witness, still that his testimony, as_ well 
 as that of the other witnesses mentioned in the second ground, is inad- 
 missible. 
 
 It certainly is too late to be now disputed that parol evidence is inad- 
 missible to explain a will, exc.ept in the single case where there is a latent 
 ambiguity. In such a case, the ambiguity is always created by parol,
 
 20 SOUTH CAROLINA EQUITY REPORTS. [*17 
 
 and may be removed by parol. There is no ambiguity in the clause of 
 the will under consideration ; the testator's words must declare his inten- 
 ^,0-1 tion. They are to be construed by *the Court and if there is any 
 -" doubt as to the construction, it must be decided and removed by legal 
 rules, and not by parol evidence. The testimony proposed to be given 
 by Dr. Leith and the other witnesses, was clearly inadmissible, and was 
 property rejected by the Chancellor. 
 
 On the third groundj involving a construction of the clause of the 
 testator's will, under which the plaintiff claims, I agree with the Chan- 
 cellor, that the plaintiff is entitled to an annuity of one hundred and fifty 
 dollars. The reasons of the Chancellor are perfectly satisfactory to my 
 mind, and I will add to them a single authority with a few additional 
 remarks. In Ivy v. Gilbert, 2 Pr. Wms. 19, the Lord Chancellor said : 
 " The natural meaning of raising a portion by rents, issues and profits, is 
 by the yearly profits." If this be so, does not the same meaning most 
 clearly apply to the words used in the will under consideration, " the 
 profits or moneys arising out of my estate." They seem naturally to 
 imply a fund which would not break on the capital, such as annual rents 
 or interest. For they must "arise out of," spring from, or be produced 
 by it. The sum bequeathed is for maintenance. The legal import of 
 maintenance is, support from time to time, and in the case of minors, 
 whose maintenance is provided by trustees, the rule is well settled, that 
 the interest on money at interest, or the annual profits of an estate is the 
 proper fund out of which it is to be allowed. Construing the testator's 
 will, in reference to these known rules of law, and supposing him to have 
 employed his words intending that they should be explained and under- 
 stood according to their legal meaning, there can be no difficulty in con- 
 cluding that he intended to give to his son, the plaintiff, an annuity of 
 one hundred and fifty dollars, In the absence of everything in the will 
 to show that the testator used words having a fixed legal meaning, in a 
 different sense, we are compelled to conclude, that he used them in their 
 proper legal sense. 
 
 Is is therefore ordered and decreed, that the Chancellor's decree be 
 affirmed. 
 
 Johnson and Harper, Js., concurred. 
 
 *191 *^^o^^^ Kjnloch, Executor of Thomas Allen, dec'd, v. Samuel 
 -* Hamlin. 
 
 It is a rule as well of equity, as law, that a party claiming under a contract with 
 mutual stipulations, must show cither that he has performed bis part or some 
 legal excuse for not perfoiming: and therefore, held, that a partner who con- 
 tributed his proportion according to the articles, for only three yeara of the ten 
 for which the partnership was to continue, the other partner conducting the 
 business afterwards on his own means, was not entitled to an account for the 
 profits, except for the three years. [*19] 
 
 Partners may sue each other at law for the breach of any distinct engagement in 
 the partnership agreement, and generally, adeqiuite relief may, in such cases, be 
 thus obtained; and where this can be done, equity will not entertain a bill solely 
 for the breach of such au engagement. [*-0] 
 
 Before Chancellor De Saussure.
 
 *19] CHARLESTON, MARCH, 1S34. 21 
 
 Bill for account. The plaintiff's testator and the defendant entered 
 into written articles of partnership for the making and selling brick. 
 They -accordingly established a brick yard on the premises of Allen, usin"- 
 his soil and timber, and conducted the business together for three years, 
 each party contributing according to the agreement. The partnership 
 was to continue for ten years, but after the third year, Allen withdrew 
 his quota of labor, and bestowed no farther attention to it. ITanilin, 
 however,insisted to go on and continued the business until the end of the 
 term, using largely of the timber and soil. Allen dying, his executor 
 filed this bill for an account of the partnership profits, in which he claims, 
 that after making due allowance to Hamlin for his extra labor and atten- 
 tion, the wood and clay and use of the premises constituted such a con- 
 tribution, as entitled Allen to share in the profits during the whole ten 
 years, or in any event that he is entitled to compensation for the use and 
 occupation of the premises, and for the w^ood consumed in burning the 
 bricks. 
 
 The Chancellor held that the plaintiff could not maintin his bill except 
 for the three years, and refused to allow an account for the remainder of 
 the term, or any compensation for the use of the premises, or the wood 
 consumed. From this decree the plaintiff appealed. 
 
 Earle, J., (sitting for Harper, J.) Whenever a party comes into a 
 Court of law, to claim damages for the breach of an executory agree- 
 ment, containing mutual and dependent stipulations, he must show that 
 he has performed his part, or that he has been ready and willing to per- 
 form, and has been prevented by the other party, or some other sufficient 
 legal excuse for not performing. I apprehend a different rule cannot 
 prevail in equity. It is a rule of common sense and common justice, and 
 therefore a rule of both law and equity. For the three years, during 
 which the plaintiff's *testator contributed his proportion of the labor, rj^.^n 
 and otherwise performed his portion of the agreement, he is entitled ^ 
 to an account, as the Chancellor has decreed. But in relation to the 
 other seven years, as he has well remarked, " the claim for an account is 
 an awkward one." He comes into equity, with an ill-grace, to claim 
 compensation on a contract which he utterly renounced and repudiated, 
 to claim an account of the profits of a concern which he forthwilli al^an- 
 doned when he supposed it would be a losing business. It may, however, 
 have turned out otherwise ; and he has no right to withdraw from the 
 partnership. It is true, he had no right to dissolve the partnership, so 
 far as the rights of the defendant were concerned, nor could he exonerate 
 himself from his liability to others by any act of his own. But surely it 
 was competent for him to abandon his interest in the concern, to forfeit 
 his share of the profits ; and I think he has done this, by refusing to }>er- 
 form after the three first years, every stipulation contaiiicd in the agree- 
 ment, by withdrawing every portion of the capital he was to contribute, 
 except the wood and the use of the soil ; thus depriving the defendant of 
 all the benefit he might have derived from the use of that capital, and to 
 that extent diminishing his profits. To allow him or his representative, 
 the plaintiff, to claim an account and ])articipatiou of the profits, would 
 be, as the Chancellor expresses it, "to pay a premium fur breaking a 
 contract." 
 
 Vol. I._25
 
 22 • SOUTH CAROLINA EQUITY REPORTS. [*20 
 
 By this bill, however, compensation is farther claimed, for the use and 
 occupation of the land, and for the wood consumed in burning the bricks. 
 And first in relation to the land merely, or the use of the soil consumed 
 and occupied in the business. 
 
 [His honor here goes into an argument, which it is unnecessary to 
 state, showing that according to the contract, the plaintiff is not entitled 
 to compensation for the mere occupation of the premises, or the use of 
 the soil ; and then proceeds.] 
 
 Under the agreement, therefore, the plaintiff can claim no other com- 
 pensation than that agreed upon, to wit : " iifty cents per cord for one 
 half of the wood consumed," which Hamlin was to pay, and for this it 
 is contended, that he is entitled to maintain this bill for an account and 
 relief. I think not. It is not every agreement that constitutes a part- 
 nership, which, when broken, entitles the party injured to compensation 
 5^j,,-i or relief in equity. It is only for *an account of settlement on dis- 
 " ^ solution, that the aid of that Court is necessary ; and this, not merely 
 on the ground that they are partners, but because of the trust and confi- 
 dence reposed, and the necessity of a discovery. But a Court of law is 
 generally competent to give adequate relief in cases of the breach of par- 
 ticular stipulations ; it cannot enforce specifically, but can compensate in 
 damages. Partners may sue each other at law for the breach of any dis- 
 tinct and positive engagement contained in their agreement, as to account 
 annually, or to adjust and to make a final settlement of the joint concerns 
 on dissolution : then, a breach by one will vest a right of action which 
 may be enforced at law upon the covenant, and adequate damages 
 recovered. Gow on Part. 106, 107 ; 2 T. R 483, and in note, "and the 
 same rule applies to every other species of lawful covenant, by which 
 parties reciprocally and severally bind themselves, inter se, to the per- 
 formance of any particular act or thing." Where A. agreed to supply 
 B. with the manuscript of a work to be printed by the latter, the profits 
 of which were to be equally divided between them, it was held that B. 
 might maintain an action against A. for refusing to supply manuscript 
 after part of the work had been printed. Gow. 108 ; 2 B. & P. 131 ; 
 Gow. 109; 2 Stark. K P. C. 107 ; 3 Johns. Ch. Ca. 262. Under the 
 agreement in question, the plaintiff's testator was entitled to maintain an 
 action at law for the value of the wood consumed, at the rate agreed on, 
 supposing the partnership to have continued ; and there could have been 
 no occasion to go into equity, if the defendant had accounted for the 
 profits. It is a separate and distinct engagement, independent of the 
 general liability to account, arising from the relation of partner. On a 
 bill to account, if the partnership had continued, it is true that item or 
 claim might have been brought in, on final settlement of the claims of 
 each. But the question is, can the plaintiff's testator, after having for- 
 feited his claim to 'the profits, and his rights to an account, maintain a 
 bill for compensation under any part of the agreement ? And for which, 
 if entitled to any, he has plain and adequate remedy at law ? According 
 to the view already taken, he cannot maintain this bill to account, except 
 for the three years ; and if he cannot maintain this bill to account, on the 
 ground of partnership, he cannot maintain it on the ground of contract 
 under the articles. The Court cannot, after the three years, allow him 
 the aid of equity, to enforce one of the covenants or stipulations of an
 
 *21] CHARLESTON, MARCH, 1834. 23 
 
 agreement, *which he has renounced, and refused to comply with. 
 He cannot renounce and enforce at the same time. It would be con- L'^''^ 
 trary to all principle and all precedent. But setting aside the af^ree- 
 ment, it is contended that he is entitled to be paid for the wood consumed 
 and although he might recover at law, if he knew the quantity, yet, as he 
 does not, and the defendant does, he may maintain this bill. I think not. 
 That would be a very pliable principle of equity jurisdiction. Without 
 the agreement, he is entitled to the aid of equity in this, as in other cases 
 where discovery is necessary in aid of the jurisdiction of the Court of 
 law. But this case does not stand upon that footing ; nor can it be 
 maintained now, for that purpose. This Court will not now decide, that 
 the plaintiff can;?o;; recover at law, for that question is not necessarily 
 before us. If the plaintiff thinks that his testator was entitled to com- 
 pensation, under or without the agreement, for the wood consumed, let 
 him bring his action at law on the express contract, or on a quantum 
 valehat, and afford the defendant an opportunity to discount the damages 
 he may have sustained in consequence of the testator's breach of all the 
 covenants to be performed on his part. 
 
 Johnson and O'Xeall, concurred. 
 
 Hunt, for the appellant. 
 
 Edw'd C. Walker, Adm'r of Robt. May, vs. John May, and others. 
 
 Tlie grant of administration has relation to the death of the intestate, and legalizes 
 the intermediate acts of the administrator; and a judgment against an executor 
 de son tort, -will be valid agninst him after he has regularly administered, and 
 binds the estate, unless fraud or collusion be shown. The administrator in such 
 case will be estopped from denying his former executorship. [*23] 
 
 The plaintiff in this case, as the administrator of Robert May, filed his 
 bill in the Court of Chancery, for Colleton district, against the defendant, 
 to set aside the sale of certain negroes, and for an account of their hire. 
 At January Term, 1831, Chancellor De Saussure decreed the sale to be 
 illegal and void, and ordered the negroes to be sold by the Commissioner, 
 and that it be referred to him to examine and report the debts against 
 Robert May In pursuance of this order, the Commissioner sold the 
 negroes, for an amount which, with the account for their hire, exceeded 
 the debts. On the reference to ascertain the debts, a debt was claimed 
 in favor of John King. To establish the debt, the record of a case in 
 the Court of Common Pleas was produced, from which it appeared 
 *that, in 1825, King brought suit against Margaret May, (the ^^g 
 widow of Robert May,) and Edward C. Walker, (the present L 
 plaintiff,) as executrix and executor de son tort, on a promissory note 
 for $200, payable on demand, and dated in 1817, and judgment was 
 obtained and execution issued in 1821. Margaret May afterwards died, 
 and in 1829, Edward C. Walker took out letters of administration on 
 the estate of Robert May, and it is admitted that he is now insolvent. 
 The Commissioner rejected the demand, on the groimd that the note was
 
 24 SOUTH CAROLINA EQUITY REPORTS. [*23 
 
 barred by the statute of limitations in the lifetime of Robert May, and 
 the judgment against his executors de son tort, he held was not valid, so 
 as to re-establish it. 
 
 The creditor, King, claimed to have his debt paid out of the assets in 
 the hands of the Court, and excepted to the Commissioner's report, 
 alleging error in his decision. At January Term, 1834, Chancellor 
 Johnston overruled the exceptions, and confirmed the report, and from 
 his decree an appeal was taken. 
 
 Dunhin, for the appellant, argued that the subsequent administration 
 of Walker had relation back to the death of his intestate and legalized 
 all his previous acts ; and that he was estopped from denying the validity 
 of the judgment. He cited and relied on 1 Com. Dig. 466, tit Ex'ors 
 and Adm'rs; 1 Esp. Dig. pt.' 2, p. 91; 2 St. 1106, Vaughn v. Brown; 
 2 Tent. 180 ; 1 Com. Dig. 503 ; 8 John. 127 ; 1 Saund. 265, note 2. 
 
 Elmore, contra, cited Anderson v. Belcher, 1 Hill, 246. M'JS^eil v. 
 Jones, lb. 84. 
 
 Harper, J. It appears to me that the only material question in the 
 case is, whether the judgment obtained by John King against Margaret 
 May and Edward C. Walker, as executors de aon tort of Robert May, is 
 valid as against Edward C. Walker, now administrator of Robert May, 
 and binds the estate in his hands. It is agreed that Margaret May is 
 dead, so that, in any point of view, Edward C. Walker, as survivor, is 
 alone subject to be sued. If it be a valid judgment against the adminis- 
 trator, there can be no question respecting the statute of limitations. 
 
 I think the authorities referred to on the part of the appellant, suflB- 
 ^g,-| ciently establish that it must be regarded as valid. The doctrine* 
 *^ J inferred from the case of Vaughan v. Brown (Str. 1105) is, that 
 the grant of administration has relation back to the death of the intes- 
 tate, and legalizes the intermediate acts of the administrator. In that 
 case the defendant was sued as executor, and claimed to retain for a 
 judgment from the deceased in his lifetime to himself. It was replied 
 that he was executor de son tort, and he rejoined administration granted 
 to himself j^uis darrien continuance. So, in 1 Saund. 262, n. 2, it is 
 said that a subsequent administration legalizes acts which were tortious 
 at the time. The same doctrine is recognized in the case of Rattoon v. 
 Overacker, 8 Johns. 97, and by this Court in Witt v. Elmore, 2 Bail. 
 595. In the latter case, it is said the effect of the rule is to legalize the 
 acts done as executor de son tort, both for and against him. Suppose 
 an action of debt to have been brought on the judgment against Edward 
 C. Walker, as survivor, a recovery must have been had. Supposing it 
 necessary to describe as executor, in conformity to the former judgment, 
 he would have been estopped by the record to deny himself executor ; 
 and then suppose an execution issued on the last judgment and enforced 
 the effects of the testator in his hands, how could the enforcement of that 
 execution have been restrained ? 
 
 The administrator himself would have been estopped. He represents 
 all creditors and distributees, and they are bound by his acts, unless in 
 cases of fraud or collusion. The effects, in the present instance, are not 
 in the hands of the administrator ; but he is entitled to all funds of the
 
 *24] 
 
 CHARLESTON, APRIL, 1834. 25 
 
 estate until all debts are paid, nor until then can the distributees be enti- 
 tled to anything. It is said, an executor is not bound to plead the statute 
 of limitations. Toll. Law of Exor's, 343-429 ; Ex parte Dewducy, 15 
 Ves. 498. However this may be, (and perhaps in some instances it may 
 be questionable,) in this case he has not pleaded it ; there is a jiido-mcnt 
 against hina which binds him and the estate. If he has been guilty of a 
 neglect of duty in this matter, the remedy of those interested in the estate 
 must be against him on his official bond. The motion is therefore 
 granted, and the exceptions sustained. 
 
 Johnson and O'Neall, Js., concurred. 
 
 *The Bank vs. the Executors of W. W. Trapier, and others. [*25 
 
 The Commissioner may, under the order of the Court, make sales of land lying in 
 another district. [*25] 
 
 W. W. Trapier lived and died a resident of Georgetown district. His 
 executor and some of his. creditors and legatees are residents of that dis- 
 trict ; some of his creditors and legatees are resident in Charleston dis- 
 trict. W. W. Trapier having mortgaged his plantation, the bill in this 
 case was filed, and the proceedings were submitted to Chancellor De 
 Saussure, by consent of parties, in May Term of the Court of Charleston, 
 and an order was entered, also by consent of parties, that the mortgage 
 shonld be foreclosed, and the mortgaged premises, sold in Georgetown 
 in January, by James W. Gray, Esq., Commissioner in Equity for 
 Charleston district. 
 
 A motion was made at the instance of Mr. Heriot, the Commissioner 
 in Equity for Georgetown, before Chancellor De Saussure, to modify this 
 order and direct the sale to be made by the Commissioner in Equity for 
 Georgetown district, which motion was refused. 
 
 An appeal was taken from this decision, on the ground that the Act 
 of Assembly of 1191 prescribes that the Commissioners of the several 
 districts shall make the sales within those districts, and the consent of 
 the suitors should not divest the relator of a privilege given him bj law. 
 
 Dunkin, for the appellant. 
 
 Grimke, contra. 
 
 Johnson, J. There does not appear to me to be any reasonable 
 foundation for this motion. By the Act of 1191, (1 Brev. Dig. Tit. Com. 
 of Equity, sec. 41,) the Commissioners in Equity for the several districts 
 are required to attend the sittings of the Courts, and to take and enter 
 down the decrees, orders and minutes thereof, &c., "and shall make all 
 sales under the decree of the said Court." It contains no reference to 
 the place where the property is situated or found, and I can see nothing 
 in the nature of the service which would restrict the authority of the 
 Commissioner to that which is found or situate in his own district. On 
 the contrary, there are many reasons why the sales should be made by
 
 26 SOUTH CAROLINA EQUITY REPORTS. 1*25 
 
 the Commissioner of the Court in which the decree is entered. The 
 returns of the sales and the accounts must be made there, and to that 
 *9p-| * Court its Commissioner is directly responsible for the manner in 
 " J which he has discharged his duty. 
 
 The usage of the Court, spoken of by the Chancellor, is an irresistible 
 argument in favor of tliis construction ; and besides that, the consent of 
 the parties is in itself conclusive. If they, themselves, thought proper to 
 make a private agent to sell the property, the Court could not control 
 them in it. Tliey, at least, would be bound by his acts, and no one else 
 is interested, whether he acts well or ill. 
 
 The motion is therefore dismissed. 
 
 O'Neall and Harper, Js., concurred. 
 
 Mary and A. M. Sherman vs. Justus Angel, Executor. 
 
 On a bill against an executor to account for his administration, he "will not be allowed 
 a credit in making up the accounts, for a counsel fee paid by him in the case for 
 litigating questions in which he was individually interested and which were de- 
 cided against him; nor does it vary the case that some of the credits claimed by 
 him, were contested and adjudged in his favor. [*-0] 
 
 Bill for account. On the reference before the Master to make up the 
 accounts, the defendants claimed a credit of two hundred dollars, as a 
 counsel fee paid by him for litigating the question made in this case. 
 The Master refused to allow it. Exception being taken to the report. 
 Chancellor De Saussure sustained the exception, and an appeal was 
 taken from his decision. 
 
 JonNsox, J. There is certainly much good feeling in the view which 
 the Chancellor has taken of this case; and if it was a case in which the 
 Court could exercise any discretion, the defendant should have the benefit 
 of it ; but the rights of the parties appear to me to depend on- a rule of 
 right, over which the Court has no control. The defendant, by neglect- 
 ing to make regular returns of his administration to the Ordinary, and to 
 account with the plaintiffs, has rendered this suit necessary — the ])laintififs 
 had no other means of coming at their rights. The principal litigation 
 in the cause arose out of his claim to be paid for the board and lodging 
 of the plaintiffs, and to be let into a distribution of the estate limited 
 over to the children of his wife's mother, and both these claims were 
 decided against him, and he now asks to be reimbursed money paid to 
 counsel for vindicating these claims — and surely the Court would not be 
 *2'71 J'^^''^'-^^'^^^ ^'^ compelling the plaintiffs to pay money* which he has 
 voluntarily given to another, to their prejudice, rather than their 
 advantage. 
 
 It is said that some litigation grew out of one of the credits claimed 
 by the defendant in the account which was objected to by the plaintiffs, 
 and which was adjudged for the defendant, and this is claimed as a 
 ground on which the defendant ought to be reimbursed his expenses.
 
 *27] CHARLESTON, APRIL, 1834. 27 
 
 The bill was for an account from the defendant, and it was not oidy liis 
 duty to render a correct account, but the right of the plaintiffs to contest 
 every item, and insist on its being proved and substantiated accordina; to 
 the forms of law. They have not, therefore, been guilty of any wrong, 
 and ought not to be charged with the errors or misfortunes of the 
 defendant. 
 
 It is therefore ordered that the decree of the Circuit Court be reversed, 
 and that the report of the Master be affirmed and made the judgment of 
 the Court. 
 
 Harper, J., concurred. 
 
 Grimke, for the appellants. 
 
 Petigru, contra. 
 
 Fnion Bank vs. A. Y. Toomer, 
 
 General rules for determining whetlier conveyances be fraudulent, and the cases on 
 that subject considered. [*^!1] 
 
 "When a consideration is paid in order to avoid the conveyance, the Court must be 
 satisfied of an actual fraudulent intention, and the preponderance of authority 
 seems to be, that the purchaser must be a party to the fraud. [*?)2] 
 
 S. H., being infirm and unable to manage her business, conveyed her land and most 
 of her slaves to the defendant, he paying certain debts, (which, after inquiry, were 
 believed to be all she owed,) and an annuity for her life equal to the appraised 
 value of the property deducting the debts: after the death of S. H. judgment was 
 obtained against her executors on a bond executed by her as surety, and which 
 existed before the conveyance: on a bill by the judgment creditor to set aside 
 the conveyance on the ground of inadequacy of price and charging that it was 
 fraudulent as to creditors; there being no evidence that the defendant knew of this 
 debt, or that fraud was intended, it was held that the conveyance was valid. 
 [*C3] 
 
 Charleston, May Term, 18.33. — Before Chancellor De Saussure, who 
 pronounced the following decree : 
 
 The oliject of the bill in this case is to have the benefit of a judgment 
 at law, on a bond of the late Mrs, Sebina Hall, and for that purjjo.'^o to 
 set aside certain sales and conveyances of lands and negroes, made and 
 executed by said Mrs. Hall to Dr. Toomer, the defendant, prior to said 
 judgment, on the ground of fraud and inadequacy of price. There were 
 two distinct questions made at the argument of the cause, for the con- 
 sideration of the Court. 1. It was insisted that the bond executed by 
 Mrs. Hall to C. B. Cochran (on which the judgment has been ol)taincd) 
 and by him assigned to the Union Bank, as a security for a bond given by 
 Jacint Laval to C. B. Cochran, and assigned to the Bank, *was r^cf^ 
 obtained from her by imposition and practices on her weakness and L 
 confidence in Laval, and is not sustainal)le in a Court of Equity. 2. 
 That if the bond and judgment thereon could l)e sustained, it would not 
 affect the purchase made by Dr. Toomer, the defendant, from Mrs. Hall, 
 which was bona fulc, for valuable consideration, and without notice of 
 the bond of Mrs. Hall.
 
 28 SOUTH CAROLINA EQUITY REPORTS. [*28 
 
 Evidence to a great exteirt was given at the hearing of tlie cause, 
 applicable to both branches of the case. [The Chancellor here went 
 into an examination of the first question, and after remarking ou the 
 evidence, concludes, that although the bond is not entirely free from the 
 suspicion of being unfairly obtained, yet as a judgment at law has been 
 obtained on it, and the executors of Mrs. Hall are not parties to this 
 case seeking to set aside the judgment, he was bound to regard it as 
 valid, — and then proceeds :] 
 
 The second question is, whether the Court will set aside the convey- 
 ances of real and personal estate, made by Mrs. Hall to Dr. Toomer, the 
 defendant, to let in the plaintiff and subject that property to the payment 
 of the bond of Mrs. Hall. The plaintiff does not pretend that there was 
 any lien on the property conveyed to Toomer ; no judgment was obtained 
 on the bond until some time after the sale and conveyance to Toomer. 
 There is no proof that the purchase was made by Toomer to aid Mrs. 
 Hall in protecting the property in question against her liability on this 
 bond in particular ; it does not appear that he knew of the existence of 
 this bond. The question then is — "Was this such a conveyance by Mrs. 
 Hall to Toomer, as was fraudulent and void as to creditors ? The cir- 
 cumstances of the case were these : Mrs. Hall, a widow lady, advanced 
 in life, of infirm health, not skilled in the management of property, being 
 desirous of paying some debts and having a certain regular income, 
 applied to Dr. Toomer to be the purchaser of her lands, and the greater 
 part of her slaves, (reserving twenty). He was the son of her first hus- 
 band by his first wife ; part of the estate was derived from his kindness 
 to her. Dr. T. had behaved so properly, respectfully and usefully to her, 
 that she had great regard for him, aud she confided in his kind treatment 
 of the slaves she was about to sell, about which she was solicitous. 
 Undoubtedly, though a transaction in which she wished to get a fair 
 value for the property, there was a feeling of kindness towards Dr. 
 Toomer, mingling itself in the transaction ; but it was considered a busi- 
 ^c)n-] ness transaction, in which fair dealing *was to be observed. Dr. 
 -^ Toomer hesitated and came into the measure slovv^ly and apparently 
 with reluctance. When he acquiesced, appraisers of the property were 
 named : forty-eight negroes and the land (the latter, it seemed, was 
 thrown in at a nominal price) were appraised about $19,000. On the basis 
 of their estimate a contract was made. Respectable counsel were em- 
 ployed ou the part of Mrs. Hall to attend to her interests, and indeed 
 everything was done which caution and a determination that the transac- 
 tion should be well considered and fairly conducted, required. There is 
 no doubt of the fairness of the transaction, and Mrs. Hall, though infirm 
 and weak, was more competent, with the aid of counsel and good ap- 
 praisers, to form a sound opinion on a subject proposed by herself with- 
 out solicitation of Dr. Toomer, and the papers deliberately read to her, 
 in a case where she was to get a valuable consideration, than she was to 
 bind herself without consideration, as a surety for a large debt, without 
 the advice or presence of any friends, (who were carefully avoided,) and 
 for which her estate has been held to be bound. Having ascertained that 
 the business of the sale to Toomer was conducted fairly and deliberately, 
 and with full knowledge on the part of Mrs. Hall, the only question which 
 remains for consideration is, whether the price was fair and adequate.
 
 *29] CHARLESTON, APRIL, 1834. 29 
 
 On tins question the decided cases have made or sustained certain 
 clear principles. The absolute right of an owner of property is such, 
 that he may give it away, without any valuable consideration, if he choose 
 to do so, without prejudice to the rights of creditors, and so he may 
 choose to sell it for a price short of its real value, and no person has 
 authority to question his acts and dispositions. The adequacy or inade- 
 quacy of price is a question for his own decision, and he may at his 
 pleasure permit considerations of favor and kindness to mingle in the 
 transaction. In a sale, this power of an owner is so complete that inade- 
 quacy of price alone is not considered sufficient to set aside a sale, unless 
 the inadequacy be so enormous as to shock the common sense and the 
 common feeling of right among men, when it then raises the presumption 
 of fraud ; or unless the transaction itself be accompanied by such circum- 
 stances as show great imbecility or ignorance on the one side, and con- 
 trivance and fraud on the other. In the case before us, there are no such 
 circumstances to lead the mind even to suspect fraud or imposition. As 
 to the price, it seems to be fair. The *payment of considerable r^on 
 debts, by a schedule furnished by Mrs. Hall, after diligent inquiry L 
 by herself and her friends, to the amount of upwards of $4000, and the 
 stipulation to pay her an annuity of $1060 during her life, actually 
 placed her in a more eligible situation than she was before, and made her 
 more easy aud comfortable. 
 
 The annuity was paid during her life, which lasted six years, and made 
 an amount which, with the debts of Mrs. H. assumed and payed by Dr. 
 T., made it a fair price and reasonable bargain. It was true, as was 
 urged on the argument, that Mrs, H. might have died within a year, or 
 a shorter time after the contract, when little or nothing had been paid on 
 the annuity, and then the price of the estate sold would have been very 
 low. But it is equally true, that Mrs. H. might have lived twenty years, 
 and then the price paid would have been very high. Both parties ran 
 this risk, and it formed part of their contract. There is, then, no ground 
 to impeach the fairness of the sale to Toomer, and as his purchase was 
 made and completed before any lieu had been obtained by C. B. Cochran 
 or the Union Ijank, by judgment on her bond, it is not subject to the 
 subsec(uent judgment. It is therefore ordered aud decreed, that the bill 
 of the plaintilf be dismissed with costs of suit. 
 
 An appeal was taken from this decree, on the grounds : 
 
 1. That the conveyance of the property by Mrs. Hall to Dr. Toomer, 
 for a life annuity, was not a sale for a valuable consideration, as against 
 a bond creditor existing at the time of the conveyance. 
 
 2. That such a deed is void by the Stat. 13 Eliz., made for the relief 
 and protection of creditors. 
 
 3. That Mrs. Hall, taking back an annuity to the annual value of the 
 estate, with security on the property itself for its payment annually, was 
 tantamount to a continuance in possession, a circumstance which entitle 
 creditors to relief in Chancery. 
 
 Dunkin, for the appellant. 
 
 Petigru, contra.
 
 30 SOUTH CAROLINA EQUITY REPORTS. [*30 
 
 Harper, J. We do not tliiuk it necessary to investigate the first 
 general question made in the Chancellor's decree respecting the validity 
 of the bond executed by the deceased Mrs. Hall to Cochran for the 
 ^o-i-i security of Laval's debt, on which the plaintiflFs *have obtained 
 -J judgment. Admitting it to be valid, we do not think that the con- 
 veyance by Mrs. Hall to the defendant can be impeached. 
 
 The general rules of law on the subject cannot be questioned. Under 
 the Stat. 13 Eliz. C. 5, as well as at common law, a conveyance made by 
 a person indebted, with intent to defraud h-is creditors, is void. With 
 respect to the circumstances, however, which shall be sufficient evidence 
 of the fraudulent intention, there is a diversity. If a conveyance merely 
 voluntary be made by a person indebted, this has generally been held 
 sufficient of itself, to establish the fraudulent character of the conveyance. 
 But, if it be upon consideration, and even upon full and adequate con- 
 sideration, as in Lowry v. Pinson, 2 Bail. 324, still, if it appear that it 
 was with the actual fraudulent intention to defeat creditors, it will still 
 be void. If it was upon very inadequate consideration, this will be one 
 of the circumstances from which the actual fraudulent intention may be 
 inferred. But, however inadequate the consideration, if the transaction 
 be bona fide, it cannot be impeached. This seems to be the sum of the 
 authorities on the subject. 
 
 This would appear from the proviso in the Stat. 18 Eliz., that nothing 
 therein contained shall extend to any conveyance made " upon good con- 
 sideration and bona fide,^^ to any persons "not having at the time of such 
 conveyance or assurance to them made, any manner of notice or know- 
 ledge of such covin fraud or collusion, as is aforesaid." In the case of 
 Basset v. Nosworthy, Finch. Ch. R. 182, which was determined on the 
 plea of bona fide purchaser for valuable consideration without notice, it 
 appeared that the purchase was made at a very inadequate price. Lord 
 Nottingham said, the question is not whether the consideration be ade- 
 quate, but whether it is valuable. This is not inconsistent with Russell 
 V. Hammond, 1 Atk. 15. Three deeds were executed in one day. For 
 one of them a consideration of two hundred pounds was shown ; for the 
 second, a consideration of one hundred pounds ; for the last, no con- 
 sideration appeared. Lord Hardwicke thought the last voluntary, though 
 it was urged that all formed one transaction, and that it was inartificial 
 to split them. He thought, however, the fact that the donor had reserved 
 an annuity equal to the probable income for his own life, palpable evidence 
 of fraud. This showed the transaction to be merely colorable, the donor 
 being much indebted at the time. In Doe v. Routledge, Cowper, t05, a 
 -KoQ-i person *not indebted, had made a voluntary conveyance. Desiring 
 
 '^-' afterwards to defeat this, he made a nominal sale of the same pre- 
 mises at about one-tenth of the value. It appeared that the last grantee 
 knew of the former conveyance. Lord Mansfield held the first conveyance 
 good, and of the last, said that it should be a bona fide transaction, and 
 a fair purchase in the understanding of mankind ; but it was manifestly a 
 mere contrivance, and therefore void. In Stephens v. Olive, 2 Br. C C. 
 90, the trustees of the wife having covenanted to indemnify the husband 
 against the wife's debts, this was held a sufficient consideration for the 
 settlement on her. And so in Nunn v. Wilsmore, 8 T. R. 521, where it 
 is said the Court is not particular as to consideration, if it be bona fide.
 
 *32] CHARLESTON, APRIL, 1834. 31 
 
 The whole subject is very fully consiJered in Copes v. Middleton, 2 Mad. 
 Ch. R. 556, and the cases reviewed. In that case, an uncle, insolvent in 
 his circumstances, shortly before his death conveyed to his nephew an 
 estate, for a consideration which, according; to the testimony, appeared 
 to be about half its value. This was sustained, as from the circumstances 
 it did not ap^iear but that the transaction was bona fide; though the 
 uncle's kindness to his nephew might be supposed to have had an influ- 
 ence in inducing him to sell at a lower price. It is said a conveyance 
 cannot be invalidated under the Statute 13 Eliz., if the defendant be a 
 bona fide purchaser. Was it known to vendor and vendee, that the 
 estate was worth more than it was sold for ? It did not appear that the 
 nephew knew the uncle to be indebted. In Sands t'. Ilildeith, 14 Johns. 
 493, the opinion of Chief Justice Spencer was expressed, that where there 
 is a consideration, though the intention of the vendor may have been 
 fraudulent, yet, under the statute of Elizabeth, the conveyance is not 
 void unless the purchaser were a party to the fraud ; contrary to an inti- 
 mation of opinion in the same case given by Chancellor Kent, who 
 afterwards (3 Johns. C. C. 378) assented to the suggestion of Justice 
 Spencer. 
 
 The cases show sufficiently, that where a consideration is paid, in order 
 to avoid the conveyance, the Court must be satisfied of an actual fraudu- 
 lent intention to defeat creditoi's, and in general the preponderance of 
 authority seems to be that the purchaser must be a party to the fraud, 
 notwithstanding what is said by Lord Northington in Partridge v. Gopp, 
 Amb. 596, that it is the motive of the *giver, and not the know- i-^j-qq 
 ledge of the acceptor, that is to weigh. Xow, it is not even con- '- 
 tended in the present case tliat the defendant was a partaker of any actual 
 fraudulent intention, and indeed hardly urged that Mrs. Hall had any 
 such intent. The Court can see no reason to impute such inteutiou 
 to either 
 
 It is urged, however, that this, though in form a sale, made upon con- 
 sideration, was in fact merely a gift. But this is the very question that 
 has been considered throughout. It was in form a sale ; money was paid. 
 Was it such substantially and bona fide, or only a contrivance to provide 
 for the defendant at the expense of creditors ? The transaction was this, 
 forty-eight slaves, appraised at about nineteen thousand dollars, and some 
 land, of the value of which we have no very distinct evidence, (a con- 
 sideration of five thousand dollars, is stated in the deed,) were conveyed 
 by Mrs. Hall to the defendant. He, in return, gave her his bond, con- 
 ditioned to day off her debts specified in a schedule to the amount of 
 upwards of four thousand dollars, and the grant of an annuity for life 
 of one thousand and sixty dollars. This annuity is equal to the legal 
 interest on the estimated value of the slaves, deducting the amount of the 
 debts. It is urged that it is merely a gift under color of a sale, as if 
 Mrs. Hall had conveyed the property to him in trust, first to pay off cer- 
 tain of her debts, next to pay the rents and profits to herself during life, 
 with remainder to himself after her death ; or, as if she had conveyed to 
 him, charged with the payment of part of her debts and an annuity of one 
 thousand and sixty dollars, for her life. But by this method of reasoning, 
 every sale of property at an under value might be construed a gift of the 
 surplus. There is nothing to forbid a sale for an annuity, any more than
 
 32 SOUTH CAROLINA EQUITY REPORTS. [*33 
 
 for money in hand. The distinction between the cases supposed, and the 
 present, is this, in those cases there is not even a colorable consideration 
 moving from the grantor to the grantee. If the estate should not be suffi- 
 cient to pay the debts, or, if, after payment of the debts, the income should 
 not produce the annuity, the grantee would incur no personal liability. 
 He would lose nothing in any event. If it should be more than sufficient 
 for these purposes, the surplus would be a mere gratuity to him. But in 
 the case before us, if the estate, by any unexpected casualty had perished, 
 the defendant would have been personally liable for the debts, and must 
 have paid the annuity, though the estate had not produced a cent of 
 *^11 ii^come. The payment of the debts and the annuity were *p]ainly 
 -^ regarded as the consideration both for the slaves and the land, 
 and they formed one transaction. No doubt such a, transaction might be 
 merely colorable and fraudulent, as in the case of Russel v. Hammond, 
 where Lord Hardwicke, upon the defendant's proof of the consideration 
 of two of the deeds, held the third, executed on the same day, to be 
 voluntary, and the reserving of an annuity to the annual value of the 
 estate to be a badge of fraud. But in every case the inquiry is, whether 
 it be actually so. In general, I should say, that if a person greatly 
 indebted and knowing himself to be so, should convey his whole property 
 on a greatly inadequate consideration, perhaps such a one as the present, 
 with no ostensible motive but to provide for his family, to one who might 
 be inferred to have knowledge of the circumstances, this would be re- 
 garded as colorable and void. But what are the circumstances of the 
 present case ? The defendant took the utmost pains to be informed of 
 all the debts of Mrs, Hall and provided for their payment, and he seems 
 to have been unaffectedly reluctant to enter into the transaction at all. 
 But, as I have said, no actual fraud is imputed to him. Then with regard 
 to Mrs. Hall, she had the most urgent and substantial motives to make 
 this arrangement, arising from her infirmity and imbecility to manage her 
 property so as to make it produce her a support, and was prompted and 
 urged to it by her confidential friends. There is great reason to doubt 
 whether, at the time, she knew or recollected the existence of this debt. 
 She retained twenty slaves, which, if estimated at the prices at which the 
 others were appraised, would have been sufficient to pay the debt ; and 
 if they had proved insufficient, her annuity might have been made liable, 
 subjecting her to the most cruel embarrassment. Some of the slaves 
 retained were favorite ones, whom she desired to emancipate, and which, 
 of all her property, it should seem, she would have been most unwilling 
 to render liable to be taken and sold for her debts. She was anxious for 
 the comfort of her slaves, and had confidence in the defendant's kind 
 treatment of them. Under these circumstances, it seems to me that it 
 would be extravagant to impute her conduct to the fraudulent motive of 
 defeating the payment of this debt. We must regard the defendant as a 
 bona Jide purchaser for valuable consideration. 
 
 The decree is affirmed. 
 
 Johnson, J., concurred.
 
 *Qf; 
 
 35] CHARLESTON, APRIL, 1834. 33 
 
 *Elizabeth Pakker, Executrix of Isaac Parker, i;. The Credi- r-^^^ 
 tors of Isaac Parker. I- ^^ 
 
 [la the matter of Col. Drayton.] 
 
 The garnishee dying pending the proceedings, a judgment entered up ngainst him 
 alter his death is irregular, and may be set aside at law : ami if the executors 
 appeared and consented to the trial, at most it could only be regarded as a judg- 
 ment against them, and not rank as a judgment against the garnishee, so as to 
 give prioritj' over other creditors who had not obtained judgment in his lifetime. 
 [*3y] 
 
 By the Attachment Act things capable of being identified, such as specific chattels 
 and evidences of debts, are bound by the levy so that the garnishee cannot after 
 service deliver them to the owner, or any one else, without being liable for their 
 value; and in this sense, the attachment is said to have a lien from the time of 
 its being levied; but, in the case of a debt due by the garnishee to the absent 
 debtor, it is incapable of being identified specifically as his estate, the service of 
 the attachment creates no general lien on the estate of the garnishee ; and the 
 only way the money so due can be bound is, that by the service of the attachment 
 the garnishee is, to the extent of his debt, made the debtor of the plaintiff, but 
 no lien exists against him until judgment is actually entered against him. [*39] 
 
 De Saussure, Chancellor. In this case the master has made a report, 
 which states the question clearly, to which the solicitors on the part of 
 the creditors of Isaac Parker have filed exceptions. 
 
 The following is the report of the master : " That in the distribution of 
 the funds in this case, a question arises as to a claim on the part of Col. 
 Drayton, under the following circumstances : On the 1st September, 
 1808, Col. Drayton became the surety of John Parker, in a bond to 
 John King, conditioned for the payment of $150. On the 20th of 
 October, 1808, John King assigned the bond to Jacob Martin. As a 
 counter-security to Col. Drayton, the said John Parker deposited with 
 him the bond of bis brother, Isaac Parker, for $2586, dated H May, 
 
 1811. About Jacob Martin, assignee of John King, sued out a 
 
 writ of attachment against John Parker, a copy of which was served on 
 Isaac Parker, for the purpose of attaching in his hands the amount sup- 
 posed to be due on his bond to John Parker. Isaac Parker made his 
 return as garnishee, stating that he had no moneys of John Parker in his 
 hands, and that the bond in which he was bound to him, was paid. On 
 this return an issue was made up, which was not tried in the life-time of 
 Isaac Parker. Testimony had been taken, however, and when judgment 
 was entered up against John Parker, the absent debtor, a verdict was 
 also taken against Isaac Parker, and judgment entered against him on 
 the 19th June, 1821, which was subsequent to his death. Col. Drayton, 
 having paid the bond held by Martin, as assignee of King, claims the 
 benefit of Martin's proceedings against Isaac Parker, which have l)ecn 
 duly assigned to him. It is objected to this claim, that the judgment 
 entered upon the verdict taken after the death of Isaac Parker, is irregular, 
 and that this claim cannot rank as a judgment debt against the estate ; 
 and urged in its behalf that the attaching creditors obtained a lien on 
 the funds of the absent debtor, in the hands of the garnishee, which is uot 
 defeated by the death of the latter.
 
 34 SOUTH CAROLINA EQUITY EEPORTS. [*35 
 
 " It appears to me, however, (says the report,) that the claim in this 
 j^„„-| case cannot rank as a judgment so far as the question depends* oa 
 ^^J the Act of 1744, called the Attachment Act. The object of that 
 Act is not to operate on the estate of the garnishee, but on that of the 
 absent debtor. The effect of it, is not to give the attaching creditor a 
 lien on the estate of the garnishee for the amount of funds which he may 
 have in his hands belonging to the absent debtor, but only to take such 
 funds from under the control of the absent debtor, and entitle the creditor 
 to payment out of them, and in preference to the other creditors. The 
 death of the garnishee may not affect this right or preference obtained by 
 the issuing of the writ of attachment, so far as the absent debtor or his 
 creditors are concerned ; but, as respects the garnishee and his estate, it 
 appears to me that the proceedings are arrested by his death, and that 
 it would be necessary to bring his represei.tative into Court, by proper 
 process, before any further proceedings could be had, intended to operate 
 on the interests of the estate of the garnishee. It seems such proceedings 
 were not had in this case, and therefore, when this judgment was entered, 
 Mr. Parker being dead, there was no party in Court against whom it 
 could be rendered. 
 
 " The executri.x; now contends that there is nothing due from the estate 
 of Isaac Parker, on his bond to John Parker ; but I have not entered 
 into an investigation of that. The above view is altogether independent 
 of the question, whether a Court of law will set aside this judgment, which 
 is actually of record." 
 
 To this report the following exceptions were filed : 
 
 1. Because the master has rejected the proof of the judgment of Jacob 
 Martin i'. Isaac Parker, whereas it is submitted, that as the proceedings 
 against John Parker did not abate by the death of Isaac Parker, the 
 judgment was properly entered up after his decease. 
 
 2. That the lien of the attachment was not lost by the death of Isaac 
 Parker, and that the judgment of Jacob Martin, though it cannot by relation 
 defeat purchasers or intervening judgments, is good against the executors 
 and general creditors of the said Isaac Parker. 
 
 The questions which arose in this able report were argued, and I am 
 now to decide on them. It was admitted, that the death of the garnishee 
 in attachment does not abate the suit by attachment, nor the death of the 
 absent debtor. This, I apprehend, must be on the ground that the pro- 
 ceedings in attachment are in the nature of proceedings in rem, and 
 j^qYi therefore not abateable by the death of *the absent debtor or gar- 
 -^ nishce. The counsel however made a distinction, by which he 
 endeavored to weaken the force of the admission, insisting that, though 
 the death of the garnishee will not abate the suit by attachment against 
 the absent debtor, it will stop proceedings against the estate of the gar- 
 nishee. The remedy by attachment, given by statute to the creditor, is 
 so anomalous and so different from the course of proceedings under the 
 common law, that scarcely any liglit can be derived from the rules of the 
 latter ; and it would seem, that when the statute gives such a remedy, all 
 that is necessary to give it complete effect, follows in its train. I am 
 not, however, decided in any opinion on this question. I lean very much 
 to the opinion of the master in his report ; but will sustain the first excep-
 
 *37] CHARLESTON, APRIL, 1834. 35 
 
 tion to the report, with a view to its being carried up to the Appeal 
 Court. 
 
 The second exception I also sustain, for the reasons, and with the 
 qualification stated therein ; to which should be added, that the applica- 
 tion to set aside the judgment in question should have been in the Court 
 of law, there being no pretence of fraud in obtaining it, on which this 
 Court could have interfered. 
 
 It is therefore ordered that the exceptions be sustained, and the report 
 of the Master modified accordingly. 
 
 From this decree an appeal was taken on the following grounds : 
 
 1. Because a proceeding in attachment is not a proceeding in rem, but 
 a proceeding in jjersonam, the quasi in rem being in the nature of a 
 distringas to compel an appearance 
 
 2. That although the death of Isaac Parker, the garuishee, did not 
 abate the proceedings as against John Parker, the absent debtor, yet that 
 his death did abate all proceedings as against him, just as much as if 
 John Parker had brought suit against him on the bond, alleging it to be 
 unpaid, and Isaac Parker having pleaded payment, had died before ver- 
 dict pending the cause for trial. 
 
 3. That this is not a case in which one Court is prohibited from exam- 
 ining collaterally the judgment of another independent tribunal, but is a 
 case in which, on the face of the record, the absolute nullity thereof is 
 apparent, and is therefore a clear case of a palpable defect of jurisdiction. 
 
 4. That the issue on the verdict upon which judgment was entered 
 against Isaac Parker, was a mere collateral issue to try the question, 
 under a feigned issue, whether Isaac Parker had in his hands funds of the 
 absent debtor ; that, upon the finding no *judgment could regu- p^g 
 larly be entered : that the effect merely was, that Isaac Parker ^ 
 was compellable to amend his return and deliver up the bond : that the 
 proceeding was not in the nature of a debt on bond ; that no judgment 
 for the debt could be entered on the finding ; that the bond did not pass 
 in rem jadicatum, but was to be delivered to the attaching creditor to be 
 sued in due form. 
 
 Grimke, for the appellant. 
 
 Petigru, contra. 
 
 Harper, J. So far as the claim to rank as a judgment creditor of the 
 estate of Isaac Parker, depends on the judgment entered up against Isaac 
 Parker after his death, regarding it in the light of any other judgment 
 entered in like manner against a deceased defendant, we think it cannot 
 avail the claimant. The brief merely states the fact, that the judgment 
 was entered after the death of Isaac Parker. If so, undoubtedly it was 
 erroneous, and might be set aside at law. Though the death of a garnishee 
 does not abate the proceeding in attachment, yet undoubtedly the plain- 
 tiff, when an issue is depending, ought not to proceed to trial and judg- 
 ment without bringing in the executors. The proper method of doing this, 
 I suppose, would be by a scire facias. In the present case, it was stated 
 in argument that the executors had appeared and consented to the trial, 
 and from this it seemed to be inferred that the executors would be estop- 
 ped from any proceeding to set aside the judgmeut. Xo othur person
 
 36 SOUTH CAROLINA EQUITY EEPORTS. [*38 
 
 than the executors would proceed at Law for that purpose. Standing as 
 a judgment against the deceased liimself, it would have priority against 
 all creditors who had not obtained judgment in his lifetime, and if this 
 preference were obtained by the act and laches of the executors, they 
 would be liable to the other creditors as for a decasfavit. But I cannot 
 take this view of the matter. The voluntary appearance of the executors 
 amounted to no more than if they had appeared upon a scire facias. They 
 consented to go to trial, and I must suppose that the proper judgment 
 should be entered. If an improper judgment was entered, I see nothing 
 to estop the executors from setting it aside at law. A judgment against 
 the executors would entitle the plaintiff to no priority, and this, at all 
 events in equity and in a contest between creditors, cannot be regarded 
 as any thing more. I do not understand it to be contended that the 
 executors ought to be made pei'sonally liable. 
 
 5j,„o-n *But even regarding it merely as a judgment against the execn- 
 -^ tors, it is contended that it must have relation to the serving of 
 the attachment on the garnishee, and bind his estate from that time. The 
 Attachment Act, after providing for the issuing of the writ " to attach 
 moneys, goods, chattels, debts and book of accounts, belonging to the 
 absent debtor, in the hands of any person or persons whatsoever," adds, 
 "and the attaching any part thereof in the name of the whole that is in 
 such person's hands, power or possession, sliall secure and make the 
 whole liable in law, to answer any judgment that shall be recovered and 
 awarded upon that process." The attaching of " moneys" in the hands 
 of the garnishee, has always been held to refer to a debt due by the gar- 
 nishee to the absent debtor, and without this construction there is no 
 provision in the Act for attaching such debt. But how are these moneys 
 to be secured and made liable to answer the judgment? If there were 
 in the hands of the garnishee any specific chattels of the absent debtor, 
 such as a horse or a slave, or the evidences of debts due to him, such as 
 bonds, notes, or books of account, they would be so bound that the gar- 
 nishee could not, after service of the attachment, deliver them to the 
 owner, or to any one else without making himself liable for the value. 
 Or, perhaps the plaintiff might follow them in the hands of any one into 
 whose possession they might afterwards come. If the garnishee should 
 die, and these chattels should come into the possession of his executors, 
 they would be compelled by the Court to deliver them up to the jilaintiff 
 in attachment who should afterwards recover a judgment. It is in this 
 sense that the attachment is said to have a lien from the time of its being 
 levied. But these are things which are capable of being identified and 
 distinguished. They constitute no part of the deceased garnishee's estate, 
 nor are liable to his creditors. But this creates no lien on the general 
 estate of the garnishee, nor is tlie plaintiff in attachment ranked as a credi- 
 tor of his, though he might become a creditor if the articles attached 
 should not be forthcoming. But in the case o^i moneys in the garnishee's 
 hands, in consequence of a debt due by him to the absent debtor, how 
 are these Xo ho, secured and made liable? They are not capable of 
 being identified. There is -no specific money which you can direct the 
 executors to pay over to the plaintiff. There is no general lien on the gar- 
 nishee's estate. I can conceive no other way in which these can be said
 
 *39] CHARLESTON, MARCH, 1834. 37 
 
 to be bonncl, but this : that after the attachment *levied, the 
 garnishee is not at liberty to pay the debt to his creditor, or to L ^^ 
 any one authorized by him to receive it, and if he does so, he will still be 
 liable to the plaintiff in attachment who shall afterwards recover a jud"-- 
 raent. By the serving of the attachment, the garnishee who owes the 
 absent debtor, is made the debtor of the plaintiff who shall afterwards 
 recover judgment, but he is not the judgment debtor, until judgment is 
 actually entered against him. 
 
 It is ordered and decreed that the decree of the Chancellor be reversed, 
 and the Master's report confirmed. 
 
 Johnson, J., concurred. 
 
 YoL. 1.— 26
 
 CASES IN CHANCERY 
 
 ARGUED AND DETERMINED IN THE 
 
 COURT OF APPEALS OF SOUTH CAUOIINA 
 
 Columbia — Pag anb |une, 1834. 
 
 JUDGES PRESENT, 
 
 Hon. DAYID JOHNSON, Presiding Judge. 
 Hon. J. B. O'NEALL. ] Hon. WILLIAM HARPER. 
 
 .Iohn Conner, Administrator, and others, v. Robert Johnson, Admin- 
 istrator, and others. 
 
 Devise to several ascertained individuals, and to a class of individuals to be ascer- 
 tained on some future event, that class will take a share equal to that of each of 
 the ascertained individuals, and no more. [*-l-l] 
 
 Testator devised that "after the death of his wife," his estate should be given to 
 seven p'ersons by name, and to the children of E. C : — Held, that the persons 
 named took each, one eighth part of the estate, and the cliildren of E. C. living 
 at the death of the tenant for life, the remaining eighth — and that no estate vested 
 in any of the children of E. C. who died before the period of distribution (the 
 death of the tenant for life,) so as to be transmissible to their personal repre- 
 sentatives. [*44] 
 
 Orangeburgh, January, 18.3L — Before Chancellor De Saussure. 
 
 This bill was filed by John Conner, as administrator de bonis non, 
 and with the will annexed, of Jacob Whiteman, and as j^^'o. ami of 
 Clarissa and Joel Rhode, "William, Mildred and Jefl"erson Conner, infant 
 children of Elizabeth Conner, formerly Elizabeth Carn, and called by 
 that name in the will of Jacob Whiteman. The bill originally embraced 
 many objects and several defendants, but all the points in controversy 
 have been finally adjusted except one, which arises under the following 
 state of facts: Jacob Whiteman died in 1810, leaving a will, by which 
 he devised his whole estate. To his widow, Elizabeth, the bulk of it was 
 given for life. After disposing of various portions of it, the last clause, 
 *4.9n '^ii^der which arises *the question now made for this Court, is pre- 
 
 "'-' sented in the following words : " Item — and my will is, that after 
 the death of my wife, the tract of land on Indian Camp, and all the rest 
 of my estate not otherwise disposed of, shall be equally divided between 
 David Rees, and Daniel and Jacob XJtesey, sons of Jacob Utesey, and 
 David, and Isaac, and Ann Utesey, children of George Utesey, and 
 Jacob Carn and the children of Elizabeth Carn, (afterwards Elizabeth
 
 *42] COLUMBIA, MAT, 1834. 39 
 
 Rhode, and now Elizabeth Conner,) children and grand-children of 
 Frederick Carn ; and whereas, I have made fonr different parts of fami- 
 lies my heirs, my will and desire is, that if any of them shonld die with 
 (meaning without) issue, then and in that case, his or her share shall be 
 equally divided between my adopted heirs of the same family." 
 
 Of one of these families, Daniel Utesey died after the testator and 
 before the tenant for life, leaving no issue. Of another family, Jacob 
 Carn died without issue, after the testator and before the tenant for life. 
 And Elizabeth Carn, named in the will, was his sister, and was then 
 married to one Christian Rhode. She had then alive one child, named 
 Daniel G. Rhode, who afterwards died an infant and before the tenant 
 for life. She also had alive at the death of Mrs. Whiteman, the tenant 
 for life, five other children ; two by the first husband, named Clarissa 
 and Joel Rhode, and three by the plaintiff, John Conner, named William, 
 Mildred and Jefferson Conner. The bill claimed for these five children, 
 each, one equal share of the estate, and also two other shares, one in 
 right of their uncle Jacob Carn, and one in right of their brother, Daniel 
 G. Rhode : and also submitted that Jacob Utesey, having survived his 
 brother Daniel, is entitled to two distributive shares. For the defend- 
 ants, it was contended, that these families took each one-fourth of the 
 residue, and not per capita. Or, to make the distinction more palpable, 
 the plaintiffs contend that this portion of the estate shall be divided into 
 thirteen shares, and claim, as the children of Elizabeth Carn, seven-thir- 
 teenths. The defendants contend that it is to be divided into four 
 shares, and the plaintiffs receive only one-fourth. In deciding this part 
 of the case. Chancellor De Saussure says : "Some of the remainder-men 
 died without leaving issue. A question was raised, who were entitled 
 under the will to their shares." And after copying the clause, as 
 set out above, proceeds: "It is a very obscurely drawn will, yet I 
 think that the intention is plain enough in this case. He meant 
 *that each of those four parts of (distinct) families, as he calls r*^q 
 them, should take the share of any one of the members of each •- 
 family dying without issue. Thus, as Daniel Utesey and Jacob Utesey 
 formed one of these stocks, on the death of Daniel without issue, Jacob 
 is to take his share. So as Jacob Cam was one of these four stocks 
 wdien he died without issue, the other members of that stock became 
 entitled to his share." 
 
 From this part of the decree the plaintiffs appeal, on the grounds : 
 That the remainder-men took per capita, and that the children of 
 Elizabeth Carn (now Conner) are entitled to seven-thirteenths of the 
 estate instead of one-fourth, to wit. : to five thirteenths in their own 
 immediate right — to one-thirteenth through their uncle, Jacob Carn, and 
 one other thirteenth through their deceased brother, Daniel G. Rhode. 
 
 Elmore, for the appellant, cited 3 Br. Ch. C. 367 ; 1 P. W. 340 ; 
 2 P. W. 383 ; 2 Vern. 705 ; Forrest, 251 ; 1 Br. C. C. 31 ; 3 Br. C. 
 C. 64. 
 
 Harper, J. -I shall first consider the case on the words of the will, 
 which follow : " Item, and my will is, that after the death of my wife, 
 the tract of land on Indian Camp, and all the rest of my estate not other- 
 wise disposed of, shall be equally divided between David Rees, and
 
 40 SOUTH CAROLINA EQUITY REPORTS. [*43 
 
 Daniel and Jacob Utesey, sons of Jacob TJtesey, and David, and Isaac, 
 and Ann Utesey, children of George TJtesey, and Jacob Carn, and the 
 children of Elizabeth Carn, (afterwards Elizabeth Rhode, and now 
 Elizabeth Conner,) children and grand-children of Frederick Carn." 
 
 I consider it to be very well settled, that if there be a devise to an 
 individual designated by name, and to other individuals designated as a 
 class, as to A and the children of B ; or if it be to the children of A and 
 the children of B, all the individuals take equally, and per capita. So, 
 if the devise be to next of kin, they will take per capita, and not per 
 stirpes. ■Blackler v. Webb, 2 Pr. Wms. 383 ; Northey v. Strange, 1 
 Pr. Wms. 340 ; Green v. Howard, 1 Br. C. C. 31 ; Phipps v. Garth, 3 
 Br. C. C. 64 ; Butler v. Stratton, 3 Br. C. C. 369. But in the case of 
 Cole v. Creyon, yl Hill Ch. 311,) decided by this Court, after a good 
 deal of consideration, in May, 1833, it was held, that an exception must 
 be made, and that "if there be a bequest to an ascertained individual, 
 *i t1 ^"^^ ^^ ^ class of unascertained individuals,* (to be ascertained at 
 
 ' -' any future time after the death of the testator,) it vests one-half 
 in the said individual, and the other half in the individuals of the class 
 collectively, when they are ascertained." It follows from the principles 
 of that decision, that if there be a devise to sevei*al ascertained indi- 
 viduals, and a class of unascertained individuals, to be ascertained on a 
 future event, that class will take a share equal to that of each of the 
 ascertained individuals, and no more ; they taking the residue jointly. 
 It depends on this, that the different interests must vest at difTerent times. 
 The shares of the ascertained individuals must vest at the death of the 
 testator ; that of the unascertained individuals, cannot vest until the event 
 happens by which they are to be determined, and upon any other con- 
 struction it would be impossible to determine what interest did vest at 
 the testator's death. That case, like the present, was a devise to the 
 testator's wife for life, and after her death to be divided between Alexan- 
 der Creyon, and the children of Elizabeth Cole, who was still living. In 
 Justice Windham's case, (5 Rep. 8,) it is said that joint words shall be 
 taken severally, " sometimes in respect that the grant cannot take effect 
 but at several times, as 24 E. 3, 29, a, a remainder limited to the right 
 heirs of J. S. and J. N., (J. S. and J. X. being alive,) in which case the 
 words are joint, and yet the heirs shall take severally." This is on the 
 ground of the property's vesting at different times. The heirs of J. S. 
 and J. N. cannot be ascertained till their deaths, for nemo hceres viventis, 
 and it is not to be supposed that they will die at the same time. Mr. 
 Preston, in his Treatise on Estates, (2 vol., p. 20,) refers to this case, 
 and as an inference from that and other cases mentioned, says, (p. 22,) 
 " A grant may be given to the right heirs of three persons, of whom two 
 are dead and one is living. No determination which occurs has settled 
 the quality of the estates which shall pass by a gift under these circum- 
 stances. From principle, it should seem, that the right heirs of the 
 person who is living would have one-third part separately to themselves, 
 and that the heirs of the two deceased persons would be joint tenants of 
 the remaining two-third parts." 
 
 In the case before us, there were at the death of the testator seven 
 
 *451 P^^"^*^'^^ designated and cei'tain, to whom the estate was given *after 
 
 the death of his wife, and whose interests necessarily vested, and
 
 *45] COLUMBIA, MAY, 1834. 41 
 
 a class of persons wlio could not be ascertained till the death of tho 
 tenant for life, nor their interests vest till then. It is clear that all the 
 children of Elizal)eth Carn, born before the period of distribution would 
 be entitled to take ; and in the same case of Cole and Creyon, we have 
 held that the property did not so vest in any of the children of Eli/>aV)eth 
 Carn, who died in the life-time of the tenant for life, as to be transmissible 
 to their personal representatives. Their interest was contingent until 
 the death of the tenant for life. It results from these principles, that at 
 the testator's death, the seven designated persons, David Ilees, Daniel 
 TJtesey, Jacob Utesey, David Utesey, Isaac Utesey, Ann Utesey, and 
 Jacob Carn, took under the words of the will which I have quoted, 
 seven-eighths of the estate as joint-tenants, and one-eighth remained for 
 the children of Elizabeth Carn, who should be living at the death of the 
 tenant for life. 
 
 Nor do I think the words of the will which follow, can produce any 
 different effect : " And whereas I have made four different parts of fami- 
 lies ray heirs, ray will and desire is, that if any of them die without issue, 
 then and in that case, his or her share shall be equally divided between 
 my adopted heirs of the same family." There is nothing inconsistent in 
 the devisees' taking in the manner which I have indicated, and the limita- 
 tion of the interest of each to the survivors of the same family. 
 
 The will speaks of four families. I suppose that David Rees, though 
 of a different name, was of the same family with Daniel Utesey and Jacob 
 Utesey, as Jacob Carn is clearly pointed out to be of the same family 
 with the children of Elizabeth Carn. If so, upon the death of Daniel 
 Utesey, his share accrued to David Rees and Jacob Utesey. If they 
 were not in any manner of the same family, then to Jacob Utesey alone. 
 The fact may be inquired of by the Commissioner. 
 
 It follows from what I have said, that the plaintiffs, children of Eliza- 
 beth Carn, are entitled to one-eighth of the estate under the devise to 
 them, and one-eighth in right of their uncle Jacob Carn. And it is 
 ordered and decreed, that the decree of the Chancellor be modified 
 accordingly. 
 
 Johnson and O'JSTeall, Js,, concurred. 
 
 *Jesse Gordon, Administrator, vs. Sarah W. Stevens. [*46 
 
 When the wife may claim dower, and at the same time take under her husband's 
 will — The cases on the subject considered. [*47] 
 
 To exclude the right of dower, the intent must appear by express words, or by clear 
 and manifest implication. [*48] 
 
 A devise of lands to trustees to sell, or with directions to executors to sell, passes 
 the estate subject to dower: — and where the testator bequeathed to his wife all 
 the property which he obtained by her in marriage, and directs that his estate be 
 sold to pay his debts and provide for his children: — Held, that the wife was enti- 
 tled to dower, notwithstanding she accepted the legacy, and that the sale of the 
 land must be subject to that right. [*19] 
 
 Heard before Chancellor De Saussure, at Union, June, 1833.
 
 42 SOUTH CAROLINA EQUITY REPORTS. [*46 
 
 The bill states that Edward Stevens died in 1832, leaving a will, by 
 Mhich he disposed of his property in the following clauses, to wit: 
 
 " 1st. It is nay will and desire, that my loving wife, Sarah W. Stevens, 
 do have all the property which come by lier in fnarriage ; and in i)lace of 
 the horses which I have traded, I give her my horses, Billy and Hector ; 
 and that she do pay off" the debt she owes to Thomas Pratt, of Newberry 
 village, out of the above specified property." 
 
 " 2dly. It is my will and desire, that all my estate be sold, and my just 
 and lawful debts be paid, and that the balance of the money, arising from 
 the sale thereof, be equally divided between my three children, Elizabeth 
 D., James Henry, and Jesse Warren Stevens." 
 
 That the plaintiff has taken out letters of administration with the will 
 annexed. That the testator, died, seized of a valuable plantation, on 
 which the defendant (his widow) has resided since his death, and in which 
 she claims dower, although she has accepted the legacy under the will, and 
 that this land is directed to be sold and divided between his children after 
 the payment of the debts ; and it is submitted that she has made her elec- 
 tion by taking under the will, and thus barred her right of dower. That 
 after the payment of the debts out of the property bequeathed to the 
 children, the provision made by the will for the defendant will l)e aljout 
 equal with that for the children. The bill prays the decree of the Court 
 on the right of the defendant to dower ; and if she has not already 
 elected, that she be required to elect, either to take under the will and 
 abandon her dower, or taking dower, to abandon the legacy ; and an 
 account for rents and profits. 
 
 The Chancellor decreed in favor of the defendant, allowing her dower, 
 notwithstanding the acceptance of the legacy; and the plaintiff appealed 
 on the grounds : 
 
 1. That the claim of dower is incompatible with the provisions of the 
 will ; the testator clearly intending to bar the widow's right of dower, as 
 otherwise the will operates une(iually and unjustly on his minor children. 
 
 * 
 
 4Y] 
 
 *2. That the defendant having elected to take under the will, she 
 
 cannot claim against it ; and if she has not elected, she should be 
 put to her election. 
 
 Herndon, for tlie appellant, on the first ground, cited 4 Eq. Rep. 294, 
 Arab. 682 ; 2 M'C. Ch. 300 ; and on the second ground, 7 Bacon, Ab. 
 Election, 300 ; 2 Sch. and L. 449 ; 1 Ves. 280. 
 
 JoiixsoN, J. The leading question, and that to which the grounds of 
 this motion are principally directed, is whether the defendant is entitled 
 to dower in the lands of her late husband, the plaintiff's testator. 
 
 The widow's right of dower is one with which the law invests her, and 
 over which the husl)and has no control. He can neither dispose of it by 
 contract in his lifetime, nor direct the disposition of it after his death by 
 will or otherwise. She can only be deprived of it by her own act or 
 voluntary consent. The husband has, however, the unquestionable right 
 to annex to the dispositions of his other property, by will, any condition 
 he may think proper, which is not in itself against the law. He may, there- 
 fore, make it the condition of a legacy to his wife, that she shall renounce 
 her dower or declare that it shall be in lieu or bar of her dower, and if
 
 *47J COLUMBIA, MAY, 1834. 43 
 
 she accept it, must necessarily so operate. It seems to lie universally 
 agreed, too, that althongjh no such condition or declaration Is exi)ressed 
 in the will, she will not be entitled to both the legacy and the dower, if 
 retaining her dower would be inconsistent with the provisions of the will, 
 and defeat the intention of the testator. But there has been much difVi- 
 culty in establishing a rule of construction by which to ascertain the 
 intention. 
 
 In Lawrence v. Lawrence, 2 Yern. 365, the testator gave to his wife 
 a part of his personal estate and a part of his real estate, during her 
 widowhood, and devised the residue of his estate to trustees for the pay- 
 ment of his debts and other legacies, remainder to his god-son — and Lord 
 Somers was of opinion that here was a plain intention that the legacy 
 should be in lieu and satisfaction of dower, because the testator had 
 devised all his other real estate to other uses, and decreed that the widow 
 should make her election to take the legacy or her dower. But this 
 judgment was afterwards reversed by Lord Keeper Wright, whose opinion 
 was supported on an appeal to the House of Lords. 
 
 *In Villa Real i'. Lord Galway, Ambler, 682, the testator de- r^ .o 
 vised to his wife an annuity of two hundred pounds, and the bulk L 
 of his estate, real and personal, to trustees in trust ; amongst other things 
 to pay this annuity : and it was held by Lord Camden," that the widow 
 was not entitled to both the legacy and her dower, but must elect — 1st. 
 Because to allow the claim of dower would disappoint the will. It puts 
 the widow in possession, instead of the trustees, who are to hold the whole, 
 and in trust for the widow as an annuitant. 2dly. Because the dower 
 and annuity are inconsistent with each other. 
 
 The same rule is laid down in Arnold *;. Kemstead, Ambler, 40G ; and 
 Jones V. Collier, Ibid. 730, in both of which the estate in which dower 
 was claimed, was charged with an annuity for the wife. 
 
 These cases would seem to have established the rule that an annuity 
 for the wife, charged upon the land in which she claimed to be endowed, 
 was inconsistent with the right of dower, and that she could not have 
 both ; but in Pearson v. Pearson, 1 Bro. Ch. C. 292, Ld. Loughbo- 
 rough was of opinion, that this was not conclusive, and that if the estate 
 was sufficient to satisfy both the annuity and the dower, they could not 
 be regarded as inconsistent, and Lord Thurlow expressed the same 
 opinion in Foster v. Cook, 3 Bro. Ch. C. 347. 
 
 The same opinion is discussed by Lord Alvanly, in French v. Pavies, 
 2 Yesey, Jr., 572., and Strahan v. Sutton, 3 Yes. 249, and altliongh 
 the judgment was not upon the point, there is an evident leaning in favor 
 of the rule in Pearson v. Pearson, and the case of Greatorex i-. Carey, G 
 Yes. 615, was decided by Sir William Grant on the authority of Foster 
 and Cook. The subject came under the review of Lord Kedesdale in 
 Birmingham v. Kerwan, 2 Sch. & Lef. 444, and the rule which he de- 
 duces from all the cases is, that the intent to exclude the right of dower 
 by a voluntary gift, must be demonstrated by exi)rcss words, or by clear 
 and manifest implication, and this implication must arise from some i)ro- 
 • vision in the will inconsistent with the assertion of the claim. I refer 
 also to the case of Adsit v. Adsit, 2 Johns. Ch. Pep. 44S, where all the 
 cases are collated by Chancellor Kent with his accustomed al)ility — and 
 after all, it may be well doubted, whether there is iu England any thing
 
 44 SOUTH CAROLINA EQUITY REPORTS. [*48 
 
 like a settled rule upon the subject, or whether indeed it can be reduced 
 ^ . „-n to a certain rule. It is a question of intention and that may raani- 
 -' fest itself in such variety of form, that there would be great 
 difficulty in laying down any rule which would meet every case that may 
 arise. The prosecution of the inquiry is, however, unnecessary to the present 
 case ; for, as remarked by Chancellor Kent, in Adsit v. Adsit, all the 
 eases, however irreconcilable in other respects, agree in this, that a 
 devise of lands to trustees to sell, or with directions to the executor to 
 sell, is understood to pass the real estate subject to dower, and that is 
 precisely this case. . 
 
 A legacy, according to the language of some of the cases, implies a 
 consideration in itself, an adequate motive for the gift, and it will not be 
 intended that the testator expected that the legatee should renounce any 
 right in consideration of the legacy, unless it is so expressed, either in 
 direct terms, or by necessary implication. In this case, the testator gives 
 to his wife, the defendant, all the property which came by her in mar- 
 riage, and directs that his estate should be sold to pay debts and to pro- 
 vide for his children. He will be presumed to have known that the wife 
 would be entitled to be endowed of his lands, and as he has not thought 
 proper to annex to the legacy to her, the condition that she should receive 
 her dower, it is a fair and reasonable conclusion, that they should be sold 
 subject to that right, and in this way the provisions of the will are ren- 
 dered perfectly consistent. 
 
 It is stated in the brief, that the defendant has been in the exclusive 
 possession of the lands from the time of the death of the testator, and the 
 bill prays an account for rents and profits, but no order of reference is 
 made in the decree, nor does the decree make any order for the admeasure- 
 ment of the defendant's dower ; both these orders are rendered necessaiy 
 by the result, and were omitted, I presume, from inadvertence. The 
 executor asks the instruction of the Court also in relation to his power 
 to sell the lands under the direction contained in the will, and of this 
 also there can be no doubt. 
 
 It is therefore ordered and decreed, that the cause be referred back to 
 the Circuit Court, and that it be referred to the Commissioner, to ascer- 
 tain whether the defendant is liable for rents and profits, and to what 
 amount ; and that a writ for the admeasurement of the defendant's 
 dower in the lands whereof the plaintiff's testator died seized, do issue. 
 
 O'Xeall and Harper, Js., concurred. 
 
 -(..Q-j *James M. iS'ASH r8. Anthony Savage and Wm. Nash, Ex'ors 
 -^ of Edward Nash, and others. 
 
 The plantation on which the testator resided consisted of two adjoining tracts, on 
 one of which his mills were situated : in a devise of the plantation to his wife for 
 life, it was held, that the mills passed under the general term "plantation." 
 This construction is supported bj- another clause of the will directing his houses, 
 mills, and all his lands, to be equally divided among bis sons. [*50] 
 
 Heard before Chancellor De Saussure, at Greenville, July, 1833. 
 This bill was filed by one of the legatees of Edward Nash, against his 
 executor and devisee, claiming an account of the personal estate, and
 
 *50] 
 
 COLUMBIA, MAT, 1834. 45 
 
 partition of tlie real. Tlie demand for partition was resisted on the 
 ground, that all the testator's land, with a mill situated on one of the 
 tracts, passed under his will to the widow for life : and the Chancellor 
 so ruled. From his decree the plaintiff appealed. 
 
 The clauses of the will relating to this question, and the facts connected 
 with it, are stated in the following opinion of this Court. 
 
 O'Nball, J. The important inquiry in the case, is whether the testa- 
 tor's mills, and the land on which they are erected, passed to Mrs. Nash for 
 life, under the following clause : — " I give and bequeath to ray well-beloved 
 wife, Mrs. Nash, my dwelling-house and furniture, one negro man, named 
 David, one negro woman, named Phillis, with the benefit of my jylantation 
 and utensils belonging to the same, a good horse and saddle, with other 
 necessary stock ; these I allow her, to render her comfortable during her 
 natural life." The question is, what passes under the devise of the tes- 
 tator's plantation ? For it is conceded that the clause just cited, is a 
 good devise of the plantation on which the testator resided. According 
 to the proof noticed in the decree, he regarded the two parcels of land 
 on which he lived and on which his mills are erected, "as one plantation." 
 The term "plantation," as well as "tract," is used as merely descriptive 
 of a body of land. In common parlance they are used as convertible 
 terms, and we speak of "our plantation," or " our tract of land," intend- 
 ing to be understood as speaking of the same body of land. A planta- 
 tion may consist of several tracts or parcels of land ; indeed, it is most 
 commonly the case that it does. I must therefore be understood, in con- 
 struing the testator's will; in that sense, in which he was in the habit of 
 using and understanding it, when he spoke of the two parcels of land on 
 which he lived and on which his mills were *erected. The case of j-^r, 
 Cain V. Maples, 1 Hill's P^eports, 304, sustains this view. In that ^ 
 case it was held, that the description, "the tract of land whereon the 
 defendant lives," included two adjoining parcels of land belonging to 
 defendant, on one of which his house stood, but both had been enclosed 
 and cultivated as one tract. 
 
 In this case the will itself shows that the testator intended that the 
 mills should pass with the land. For, in the eighth clause, appointing the 
 ultimate division, he directs his "houses, mills, and all his lands,^^ to be 
 equally divided between his sons. Recur to the first clause, and it is 
 clear that he has in terms devised his dwelling-house, and in effect the 
 plantation on which he lived, to his wife for life. He could not have 
 intended, therefore, in the eighth clause, to have subjected his dwelling- 
 house and plantation to division until his wife's death. He makes no 
 distinction as to the time of division between the mills, and the houses 
 and lands : he did not intend that there should be two divisions of the 
 property, mentioned in the eighth clause ; all was to be divided at once : 
 and I think it tolerably clear, that he looked to the period of his wife's 
 death, as the time at which this division should take place. From these 
 views, I am satisfied that the mills and land on which they are erected, do 
 pass under the first clause of the testator's will hereinbefore set forth, to 
 his widow for life. 
 
 Johnson and Harper, Js., concurred. 
 
 Waddy ThomjJson, for the appellant.
 
 46 SOUTH CAROLINA EQUITY REPORTS. [*51 
 
 Henrietta C. Edgerton, and others, vs. George W. Muse and 
 Elizabeth, his wife. 
 
 The Court will exercise the right of correcting errors in its decrees in ex parte cases 
 and cases by consent, so long as they remain unexecuted : and where, on a bill for 
 partition, an order of sale was granted by consent of parties, in which by mistake, 
 a slave belonging to one of the parties and not to the estate, was included in the 
 property to be partitioned— before the sale was made, the Court on a petition for 
 that purpose, corrected the error. [*52] 
 
 The bill in this case was filed for partition of the estate of Otis Edger- 
 ton, between the plaintiffs and defendants, his heirs at law. By consent 
 of parties, a writ had issued for the partition of the estate, including a 
 slave, named Frank. The Commissioners finding it impracticable to 
 divide the estate, recommended a sale; and their return being confirmed, 
 the Commissioner accordingly sold the Mdiole estate, except Frank, as to 
 5,,p.g-, whom the order was, on the ^suggestion of the defendants, sus- 
 -' pended. The defendants then filed a petition, setting forth that 
 the slave, Frank, was originally the property of the petitioner, Elizabeth, 
 before her intermarriage with Otis Edgerton : that during their cover- 
 ture, a bill had been filed in their joint names for the recovery of the said 
 slave, and a decree obtained in their favor, ordering him to be delivered 
 up ; but that Otis Edgerton dying shortly afterwards, the decree was not 
 enforced in his lifetime by the delivery of the slave : that after her mar- 
 riage with the defendant, her present husband,- Frank, was delivered to 
 them under the decree ; and that they, in ignorance of their rights, had 
 consented that he should be partitioned : that as the slave was not 
 reduced into possession by the intestate, he constitutes no part of his 
 estate, and their consent being given under a mistake as to their rights, 
 they pray that the proceedings in partition be amended, by striking out 
 the name of the slave Frank. 
 
 On the hearing of the petition before Chancellor Johnston, at Barn- 
 well, February, 1834, he held that the petitioners were precluded by the 
 former judgment of the Court, which he had no power to alter. On 
 appeal from his decision, the following decree was pronounced by — 
 
 O'Neall, J. In this case, it seems to me that the only question 
 which we are called upon to decide, is whether the decree of confirmation 
 of the return of the Commissioners in partition precluded the defendants 
 from rectifying the mistake in fact, as to the slave Frank. 
 
 I thiidv that there is a material difference between decrees by consent 
 and of course, and those which are pronounced in invitum. The latter, 
 it has been held in this State, are not the subject of re-hearing, and can 
 only be reviewed upon new matter discovered since the decree, and of 
 which the party applying for the review could not have the benefit in 
 the first instance, and which newly discovered matter makes a new case, 
 and one proper for Equity jurisdiction. Perkins v. Lang, 1 M'C. C. 
 30, note. 
 
 In the case of Jenkins ads. Harrison, and Price u. ISTesbitt, 1 Hill, Ch. 
 445, it has been held, that as long as anything remained to be done by
 
 *52] COLUMBIA, MAY, 1834. 47 
 
 the Court in a cause, that the previous decrees of the Court were not 
 final, and that an appeal from the last decree closing the case, would 
 open all previous decrees, and bring* up the whole case for *adjudi- r^r.> 
 cation. I should be inclined to think, under this rule, that if this L 
 were a decree in inritum, that it is possible its errors might now be 
 corrected. For the slave (the subject of the dispute) has not been sold ; 
 but the decree of sale has been suspended by the Court. Be this, how- 
 ever, as it may, I think the Court must exercise the right of correcting 
 its decrees in ex imrte cases and cases by consent, so long as they remain 
 unexecuted. For although they purport to be the act of the Court, and 
 as such, have legal effect, yet, in point of fact, they are the mere act of 
 the parties. Neither the facts nor the law can be said to be judicially 
 ascertained in such a proceeding. The only restriction upon the exercise 
 of this power ought to be the execution of the decree. It is then that 
 the decree ought to be regarded as final, and to be an estoppel between 
 all parties and privies. It then has the force of a judgment, by either 
 vesting or divesting rights ; and also by operating as authority to officers 
 of the Court acting under it, and as title to purchasers who may buy 
 under it. This restriction guards the power against all possible abuse. 
 The power of correcting errors in such decrees, so long as they remain 
 unexecuted, can prejudice no one : it does not require a new examination 
 of testimony, for in such cases, most generally, no testimony is originally 
 heard ; there can, therefore, be no danger of perjury in this respect — 
 it does not re-examine and defeat any established title, for the consent of 
 the parties to the decree is all the evidence of title to which the Court 
 has looked ; and the parties are placed in no worse situation by it, for 
 the consent must operate against the party who gives it, until he shows 
 that it was given by mistake, and establishes a perfect title to relief 
 
 It is ordered and decreed, that Chancellor Johnston's decree be 
 reversed, and that the petition of the defendants be remanded to the 
 Circuit Court for an examination of the facts stated in it, and for a 
 decree upon the same. 
 
 Johnson, J., concurred. 
 
 Harper, J., absent. 
 
 Patterson, for the appellant. 
 
 Ex parte, James Heard, Guardian. [*54 
 
 Under what restrictions the Court of Chancery may order the funds of an infant 
 under its control, to be paid to a guardian appointed and residing in another 
 State. [*55] 
 
 Barnwell — February, 1834. 
 
 The petition, in this case, stated that the petitioner removed from this 
 State to Georgia, where he was regularly appointed the guardian of the 
 persons and estates of his children, who are entitled to certain personal
 
 48 SOUTH CAROLINA EQUITY REPORTS. [*54 
 
 property in this State, and to moneys now in the hands of the Commis- 
 sioner; and that he has given bond and security for the proper discharge 
 of his duties : Tliat he is desirous of removing the property of liis wards 
 to Georgia, where it can be more profitably invested than in this State ; 
 and prays an order of the Court, authorizing the same to be paid and 
 delivered to him. 
 
 On the petition being referred to the Commissioner, he reported that 
 the petitioner was a proper person to receive the appointment of guar- 
 dian, that he had given sufficient security, and that it would be for the 
 benefit of his wards to grant the prayer of the petition. On the report 
 being submitted. Chancellor Johnston made the following order : — 
 
 On reading the petition, it was referred, that the facts might come out, 
 in oi'der that the Court of Appeals might have the whole matter before 
 them, and correct ray jndgment in rejecting the petition, which I felt that 
 I must do for the want of power to transfer trust funds out of the juris- 
 diction. At the same time, I will allow the petitioner, upon security 
 here, to borrow the funds from the Commissioner. It is ordered, that 
 the petition be rejected. It is also ordered, that the Commissioner vest 
 the funds in his hands at interest, taking good bond and security, and 
 that the petitioner have leave to borrow on those terms. 
 
 The petitioner now moved the Court of Appeals to reform this order, 
 so as to grant the prayer of the petition. 
 
 Patterson, for the appellant. 
 
 CNeall, J. In the ease ex ^^arfe John Smith, in the matter of the 
 executors of James Bradshaw, 1 Hill, Ch. 140, decided at Charleston, 
 April Term, 1833, an application, similar to the present, was held to be 
 within the power of the Chancellor. 
 
 ^;.r-| *In that case my brother Harper says, " I have no douljt, on 
 -^ principle and the practice of the Court of Chancery, of the compe- 
 tency of the Court to order funds of an infant, under its control, to be 
 paid to a guardian appointed and residing in another State." In pointing 
 out how an order of transfer might be guarded against abuse, he suggests 
 three things to be examined into and reported by the Commissioner : — 
 First, the fact of the guardian having been regularly appointed, according 
 to the laws of the State in which the wards reside; secondly, the fitness 
 of the guardian for his appointment; and thirdly, whether sufficient 
 security has been given. 
 
 The two last of these inquiries were made in this case, under the order 
 of the Chancellor ; and the Commissioner reported in the affirmative on 
 each : he, also, under the order, reported that it would be for the benefit 
 of the wards to make the transfer. The Chancellor denied the motion to 
 confirm the Commissioner's report, and transfer the funds, as he says, 
 " for want of power to transfer trust funds out of the jurisdiction." 
 
 The case cited shows that he had the power which he disclaimed, and 
 his decree must be reversed. But, as the Commissioner did not inquire 
 into the fact, whether the petitioner had been appointed guardian of his 
 minor children, according to the laws of Georgia, it will be necessary 
 that the cause should go back to the Circuit Court, to enable the Com- 
 missioner to examine into that question ; and while he is doing that, he
 
 *55-] 
 
 COLUMBIA, MAY, 1834. 49 
 
 may as well re-examine the whole case, and report upon all the points to 
 the next Circuit Court. 
 
 It is therefore ordered and decreed, that the Chancellor's decree be 
 reversed, and that the cause be remanded with directions to the Commis- 
 sioner to make an examination of the case, according to the principles 
 contained in this opinion, and report upon the same to the next Court 
 for Barnwell District. 
 
 Johnson, J., concurred. 
 
 Haeper, J., absent. 
 
 *"Wm. Fryer, and wife, administrator and administratrix of J, r-^, 
 Harrell, v. Brown Bryan, and Bigham, Sherifi". L ^^ 
 
 One, apprehensive that a decree for a large amount -would be had against him, and 
 with a Yiew to defeat it, gave his bond to the defendant, his son, for twenty 
 thousand dollars, on which judgment was obtained, and moneys arising from the 
 sales of property by the sheriff claimed under it. On a bill to set aside the bond 
 and judgment as fraudulent and void, the defendant admitted that the sum of 
 three hundred and eighty-two dollars was all that was really due to him, and 
 claimed that the judgment should stand as a security for that amount: — I/elJ, that 
 the defendant, as a party to the fraud, was entitled to no favor; that the Court 
 would not examine into the fraud to ascertain if any thing be really due; and 
 the bond and judgment being fraudulent and void, the defendant should derive 
 no benefit from them. [*5G] 
 
 Marion — February, 1834, 
 
 The plaintiffs, as creditors of Lemuel Bryan, filed this bill to set aside 
 a judgment obtained by the defendant. Brown Bryan, against his father, 
 Lemuel Bryan, on which funds arising from the sale of his property by 
 the sheriff were claimed, charging the same to be without consideration 
 and fraudulent. The facts of the case, and the questions made in argu- 
 ment, are fully stated in the following Circuit decree : 
 
 De Saussure, Chancellor. The real question in this cause is, whether 
 the object of the bond executed by Lemuel Bryan to his son. Brown 
 Bryan, and the judgment thereon, was to defeat and defraud, or delay 
 just creditors of their lawful demands; and if so, whether the same be 
 void. 
 
 The condensed statement of the case is as follows : That Lemuel 
 Bryan being largely indebted to various persons, and being under a])|)re- 
 hension of a decree in Equity against him, in a suit then pending for a 
 considerable amount, made and executed a bond to his son. Brown 
 Bryan, in the penalty of $20,000, with a condition for the payment of 
 $10,000 ; there was no subscribing witness to the bond. After some 
 time; and before the decree in equity, a suit was brought on the bond, 
 and judgment obtained thereon, and entered up, in the penalty of 
 $20,000, and execution issued and lodged in the sheriff's office. No 
 steps were taken by the son, Brown Bryan, to enforce said execution, but 
 the same remained as a lieu on the estate and effects of Lemuel Bryan.
 
 50 SOUTH CAROLINA EQUITY REPORTS. [*56 
 
 Other judgments and executions for smaller suras were enforced, and 
 property sold, and the money paid to those creditors, without any inter- 
 position on the part of Brown Bryan. A large surplus, arising from the 
 sales of the property, was in the hands of sheriff Bigham, which still 
 remains there. I3rown Bryan, sometime after the judgment and execu- 
 ^rw-| tion and sales, caused an entry to be made on the execution *on his 
 -■ judgment, stating that the sum of $382 was the only sum actually 
 due him ; and it is not pretended that any more ever was due, nor has 
 that amount, or any sum approaching it, been proved to be due by 
 Lemuel Bryan, to his son. Brown Bryan. Meanwhile, a decree in Equity, 
 for a considerable sum, had been obtained by Fryer and wife, as adminis- 
 trators of J. Harrell, in behalf of the children of Harrell, for their interest 
 in the estate of Jacob Harrell, whose estate had been received and 
 unaccounted for by Lemuel Bryan. 
 
 In attempting to enforce the decree, and to procure the payment of the 
 debts established in behalf of the children who had been injured by the 
 conduct of Lemuel Bryan, the effort was resisted by setting up the judg- 
 ment of Brown Bryan against Lemuel Bryan, as a prior lien, and cover- 
 ing all his property — and although an entry was finally made on the 
 execution, that only the sura of $382 was due on the execution, yet this 
 judgment has been interposed up to this time, as a shield to protect the 
 estate of Lemuel Bryan against the decree and the demand for the money 
 due thereon. On a rule taken out, calling on the sheriff to show cause 
 why so much of the money arising from the sale of the estate of Lemuel 
 Bryan, as exceeded the $382, latterly claimed for Brown Bryan, reserving 
 that amount for discussion and decision, should not be paid to the plain- 
 tiffs, that rule was resisted, and no order could be obtained for the pay- 
 ment of such surplus; the return to the rule must have been of such a 
 nature as to have produced that effect, and that return is not to be found. 
 It has very improperly been withdrawn from the proceedings in the case, 
 and leaves it uncertain on what ground the order proposed was then refused, 
 which now, on full argument of the merits, is acquiesced in. The grounds 
 taken in that return made by the sheriff, in order to have produced the 
 effect of their defeating the rule, must have been some acknowledged 
 uncertainty of what was actually due on the judgment of Brown Bryan. 
 The sheriff's answer to the bill relies on the uncertainty, as an excuse for 
 not paying the money; and states that he had received $2,134, and paid 
 away $1,112 on prior judgments, and had a balance of $1,022 in his 
 hands which he could not pay over to the plaintiff, on account of the 
 claims of the contending parties. It was argued that the bond executed 
 by the father to him for $20,000, was a fair bond given to secure the 
 payment, not of $10,000, as is expressed on the face, but of a small sum 
 -j;-o-| alleged *to be bona fide due to him by his father, and some small 
 
 ^58] 
 
 additional advances expected to be made to him ; and that it was 
 
 good to secure and cover the amount actually due him, and claimed to be 
 $382. It was relied upon, that the answer of the defendant. Brown 
 Bryan, denying any fraud in the transaction, was sufficient to repel the 
 charge of fraud, and was conclusive in the case of a bill of discovery. 
 This is a bill for discovery and relief, and the answer is contradicted by 
 the testimony of the witnesses. They prove that Brown Bryan knew very 
 well that his father did not owe him a twentieth part of what the bond
 
 '5S-] 
 
 COLUMBIA, MAT, 1834. 51 
 
 stipulated in tlie condition to pay, even if he owes him anytliing, (wliich 
 has by no means been proved satisfactorily,) and that he (Brown Dryan) 
 aided his father in preparing the bond for this Gctitious deljt, and wrote 
 it for hira, and has relied on the judgment obtained upon it, and is set up 
 as a screen to protect the property of Lemuel Brown from his creditors, 
 the plaintiffs. The witnesses prove that Brown Bryan well knew the 
 nullity of such a bond and judgment, and so he stated to them. 
 
 Upon a careful review of the circumstances of this case, I cannot have 
 a doubt of what I am bound to do. It was clearly a case in wliich a 
 debtor, apprehensive of a large debt being established against him, in a 
 suit pending against him, on behalf of orphans, whose father's estate he 
 had mismanaged, set up a fictitious demand against himself, and gave it 
 the legal form of a bond and judgment, expressly in order to defeat, 
 defraud and delay that just deraaud ; it was given, and has been used for 
 that purpose ; and I am bound to declare such bond, and the judgment 
 founded on it, to be fraudulent and void. 
 
 A good deal of stress was laid, iu the argument, on the character of 
 Brown Bryan. It was alleged, and proved by respectable witnesses, 
 entitled to perfect credit, that his character was pure, and indeed high in 
 the estimation of his fellow-citizens ; I am very glad of it, as it will \n'o- 
 tect him from the imputation of moral fraud, even if the circumstances of 
 the case should compel tlie Court to decide that Lemuel Bryan committed 
 an actual fraud, and his son misled by filial duty, or any other circum- 
 stance, should be adjudged to have incurred the blame of legal fraud, by 
 lending his name and character to cover the attempts of his father to 
 shelter his property from his creditors and their just demands on him, 
 by setting up a fictitious and enormous debt, as due by the father to 
 "•"the son. The Court cannot permit justice to be entangled in such r^-q 
 a cobweb, and where the proofs of fraud are clear, the good charac- ^ 
 ter of a third person, who is induced to lend his name in the case, cannot 
 be allowed to prevail against them. 
 
 There is another question remaining to be decided. It is admitted 
 that Brown Bryan has no such enormous demand on his father, as the 
 sum conditioned to be paid in the fictitious bond for $10,000; but it is 
 contended, that at the time the bond was executed, there were some small 
 debts due by the father to his stripling son, amounting to about $124, 
 and that it was intended to make other occasional advances to the father, 
 to be covered by the bond; and that, in fact, the son did make other ad- 
 vances to the father, so that the latter really now owes the former $."]S2 ; 
 and the son claims payment for that amount out of the fund in the sheriff's 
 hands, as protected by the bond and judgment. This claim is n-sisted 
 by the plaintiffs, on two grounds : first, that it is not shown that the sum 
 of $382 was really and justly due by Lemuel Bryan to his son Browa 
 Bryan. Some proofs were given of a small debt of about $124, (at least 
 the answer states that) beyond this no debt was proved. The second 
 objection made by the plaintiSs is, that the defendant, Brown Bryan, 
 having mingled whatever amount of fair claim he had on the father, in 
 the fraudulent transaction of his father, cannot be permitted to protect, 
 under that fraudulent bond and judgment which are null and void, even 
 what may be really due to him, and therefore he stands merely on the 
 footing of a simple contract creditor.
 
 52 SOUTH CAROLINA EQUITY REPORTS. [*59 
 
 Thls'qnestion has come before the Court in several cases: In Miller 
 V. Tolleson, and others, (Harper's Eq. Rep. 145), I decided that the 
 transactions were fraudulent and void ; but that B. Holder, having some 
 just claims on Tolleson, the conveyance of the land should stand as a 
 security for what might be found to be justly due to him : the then Court 
 of Appeals affirmed the decree, except so far as respected the debt 
 alleged to be justly due Holder ; but reserved that. Chancellor Gail- 
 lard, who delivered the opinion of the Court of Appeals, stated that the 
 decree must be supported as far as it decides against the defendant. 
 But the Court was of opinion "that the decree did not go far enough. 
 It orders the deed, made by Tolleson, conveying the land to Holder, for 
 the nominal consideration of $20,000, should stand as a security for such 
 ^„^-] balance as might be found to be bona Jide due by J. Tolleson *to 
 -I Holder. The Court was of opinion, that although there might be 
 something due by Tolleson to Holder, the latter is not entitled to the benefit 
 of the conveyance, as a security for what may be found due, because the 
 deed making an absolute conveyance by Tolleson to Holder for a large 
 nominal price, was intended as a fraud to cover his property from his 
 creditors ; and as Holder lent his name to this fraud, he ought not to derive 
 any benefit from it. The deed must therefore be considered void, and 
 Holder must be allowed to pursue his remedy against Tolleson, if there 
 be anything due to him, which is at least doubtful." It appears to me 
 that this decision is conclusive in the case we are considering, unless 
 later decisions, made by the Court of Appeals, should have reversed it 
 and changed the law. 
 
 I am told that in a case in Lancaster, of ,(a) decided by me, I 
 
 followed out the principle established, ' as above stated, and decreed 
 according to the decision in Miller v. Tolleson ; but that the Court of 
 Appeals, in affirming the decree generally, did let the security stand for 
 as much as really had been paid. I was not furnished with a copy of the 
 decree of the Court of Appeals, nor do I know the grounds of the 
 decision. But I am satisfied that there must have been something pecu- 
 liar in that case, which made an exception proper, and that the Court 
 did not mean to set aside the principle in Miller v. Tolleson, which I 
 consider a very salutary one to discourage frauds of this kind. 
 
 It is therefore ordered and decreed, that the bond of Lemuel Bryan to 
 Brown Bryan, for the very large penalty of $20,000, (conditioned to pay 
 $10,000) when there was nothing really due but a very trifling sum, and that 
 not satisfactorily proved, being made to delay, defeat and defraud credi- 
 tors, is fraudulent and wholly void ; and it is further ordered, that the 
 defendant, sheriff Bigham, do immediately pay over to the plaintiffs the 
 whole amount of money remaining in his hands, arising from the sale of 
 the property of Lemuel Bryan — costs to be paid by the defendant. 
 Brown Bryan. 
 
 From this decree, the defendant. Brown Bryan, appealed on the 
 ground : — 
 
 That the Chancellor should have decreed the judgment to be valid to 
 the amount of $382, the sum claimed to be due. 
 
 (a) Probably, Brown v. McDonald, 1 Hill Ch. 297 ; which does not, however, 
 sustain the position here contended for. E.
 
 *61] COLUMBIA, MAY, 1834. 53 
 
 "^Graham, for the appellant, cited 2 Poth. 150-8; 13 Yes. 4Y ; 
 2 John. Ch. 89; 1 M'C. Ch. 44(» ; 2 M'C. Ch. 102; 1 Yes. sen'r, L*''l 
 3T; 1 John. Ch. 482; 4 John. Rep. 536, 598-9; 1 Eq. Rep. ICT; 
 1 M'C. Ch. 265. 
 
 Moses, contra. 
 
 Johnson, J. The fact that, the bond and judgment were intended as 
 a fraud on the creditors of Lemuel Bryan, is ascertained by the Chan- 
 cellor's decree, and is fully sustained by the evidence : and as a party to 
 that fraud, the defendant, Bryan, is entitled to no favor. We concur, 
 therefore, with the Chancellor, that the judgment ought not to stand as 
 a security for what may be due. The Court was not bound to disen- 
 tangle a web of fraud of his own manufacture, to ascertain that there may 
 have been some good material mixed up with it. 
 
 Motion dismissed. 
 
 O'jS^eall, J., concurred. 
 
 Sharod Sims, Jr., vs. John Sims, Adm'r cum test. ann. 
 
 The plaintiff had paid one hundred dollars to testator in part price of a negro; after 
 testator's death, six out of eight of the residuary legatees, gave their bond to the 
 administrator with the will annexed relinquishing their interest in the one liundred 
 dollars, and authorizing the paj'ment of their shares therein to the plaintiff: — 
 Held, that the bond was an assignment of their interest in that fund to the 
 plaintiff, — that this was an equitable and not a legal demand, and the statute of 
 limitations did not apply to it: that this claim arises not under the will, but on 
 the assignment, and a receipt for 'his dividend' applies to his share under the 
 •will, and does not preclude the plaintiff. [*62] 
 
 The administrator, will not in such case be discharged, on the ground that he h;»'3 
 no assets in his hands in consequence of the legatees having purchased at his 
 sale more than the amount of their shares. [*62] 
 
 Lancaster — Before Chancellor Johnston. 
 
 This bill was filed against the defendant for an account of his adminis- 
 tration, claiming amongst other things for the plaintitf, the sum of one 
 hundred dollars, under the circumstances detailed in the following judg- 
 ment of this Court. The statute of limitations being pleaded, the 
 Chancellor held, that it barred the demand, and that the evidence olfcrcd 
 for that purpose was not sufficient to take it out of the statute ; and an 
 appeal was taken from his decision on this point. 
 
 Harper, J. "With respect to the first question, the statement is, that 
 the testator by his will gave to the plaintiff a negro boy, John ; which 
 boy the plaintiff afterwards purchased of the testator in his lifetime, at 
 the price of five hundred dollars; paid one hundred *dollars in p^^ 
 cash, and gave his promissory notes for four hundred dollars. 
 After testator's death, six out of the eight residuary legatees of the estate 
 entered into a bond to the defendant, the administrator, reciting those 
 YoL. I.— 27
 
 54 SOUTH CAROLINA EQUITY REPORTS. [*62 
 
 facts and conditioned that they "shall relinquish and quit claim to any 
 interest which they may have in and to the said negro, John, and to the 
 said notes, and shall authorize and give full liberty to the said John Sims 
 to pay to the said Sharod Sims, jr., the sum of one hundred dollars, being 
 the amount in part which he paid for the said negro, John, and to deliver 
 into the possession of the said Sharod Sims, jr., the said notes and the 
 said negro, John, and shall save harmless the said John Sims for the said 
 transaction." The negro and the notes were delivered, the hundred dol- 
 lars remain unpaid. 
 
 We concur with the Chancellor, that by this bond the plaintiff" became 
 the assignee of the obligors and entitled to their respective interests in 
 the funds as far as one hundred dollars. They stipulate to relinquish 
 and quit claim their interest to that extent to the plaintiff", and Equity 
 regards that as done, which ought to be done. 
 
 We concur, of course, with the Chancellor in his conclusion on the 
 facts, that no express promise of the defendant to pay this amount was 
 proved either within four years before the filing of the bill or at any 
 other time, 
 
 But we do not concur that this was a legal demand to which the statute 
 of limitations could apply. Regarding the bond as an assignment to 
 plaintiff, it transferred only an equitable interest, and his remedy was 
 only in Equity. In general a mere equity will not be barred in less than 
 twenty years. Before the bond, defendant was a trustee as to this fund 
 for the residuary legatees, and the bar of the statute would not apply 
 to them. By the assignment, the plaintiff was put in the place of the 
 residuary legatees, and by accepting the bond, the defendant made him- 
 self a trustee for him. 
 
 It was urged that the defendant would not be charged, on the ground 
 of not having assets in his hands, several of the legatees having purchased 
 property of the estate for more than the amount of their shares. But 
 their debts to him for these purchases must be regarded as assets. It is 
 in his power to recover these. He knew of the state of things when the 
 arrangement was made, and he accepted the bond, and must have looked 
 to the bond for his indemnity. 
 
 *fisn *Nor do I think there was such an acquiescence as will preclude 
 -' the plaintiff". He gave defendant a receipt for his "dividend" of the 
 estate. The obvious interpretation of this, is such proportion of the estate 
 as he was entitled to under the will. But this claim does not arise under 
 the will, but on the assignment. He may have known that defendant had 
 distributed the estate, reserving nothing to meet this claim. But he does 
 not appear to have sanctioned this otherwise than by silence ; and he may 
 have been silent as to what was past and what he could not prevent. 
 
 Decree for the plaintiff". 
 
 Johnson and O'Neall, Js., concurred. 
 Clinton, for the appellant. 
 Blanding, contra.
 
 *63] COLUMBIA, MAY, 1834. 55 
 
 Daniel Matheney and Sarah Ann Matheney vs. John Guess and 
 David Felder, Executors, and others. 
 
 The huslmnd's assignment of Lis Tvife's chose in action passes her interest only 
 where he has the power to reduce it into possession ; — and where he has this 
 power, his assignment will be regarded as a reduction into possession : but where 
 he has not the power of reducing into possession, his assignment does not transfer 
 the property, until bj' subsequent events he comes into the situation of being able 
 to reduce it into possession ; and then the previous assignment will operate on 
 his actual situation, and the property will be transferred. [*GG] 
 
 In England the husband may acquire the absolute right to his wife's chose in action, 
 even after her death, by administration ; hut the rule is different in this State, 
 for under our statute of distributions, he would only be entitled to his distributive 
 share as her heir at law. [*G9] 
 
 Where the wife was entitled to an estate expectant on the death of her mother and 
 during the lifetime of the wife and the tenant for life, the husband for a valuable 
 consideration, conveyed his wife's interest in the estate, and she died before the 
 death of the tenant for life: — Held, that the assignment of the husband operated 
 only to the extent of his own share of his wife's estate under the Act of distribu- 
 tions, and did not defeat the rights of her children to the remainder. [*70] 
 
 John Guess, the maternal grandfather of plaintiffs, devised and be- 
 queathed both his real and personal estate to his wife for life, and after 
 her death to be divided amongst his children, of whom Rachel, the mother 
 of the plaintiffs, and wife of John Matheney, was one. During the life- 
 time of his wife, and of her mother, the tenant for life, John Matheney, 
 for a valuable consideration, sold and assigned all the interest which he 
 had in tiie estate in consequence of the bequest to his wife, to Patrick 
 Quartermus. The wife of Matheney died, and after her death, the tenant 
 for life surrendered the estate, and procured a division of it to be made 
 by the executors to the will. The executors, in consequence of the 
 assignment, delivered to Quartermus two slaves, on account of Mrs. 
 Matheney 's legacy. The plaintiffs claim two-thirds of this property as 
 distributees of their mother — they pray an account against the executors 
 — that their father, the executors, and Quartermus may be made liable — 
 and for partition and relief. 
 
 *Harper, J., [sitting as Chancellor.] It is not disputed that, j-^g^ 
 according to the English authorities, the assignment by the husband •- 
 would be good, inasmuch as he survived his wife. But it is supposed that 
 this is only because the husband surviving the wife, in England, is entitled 
 to her whole personal estate, and does not apply under our statute of dis- 
 tributions, where the children are entitled along with him. The familiar 
 distinction, however, which has not been adverted to, is entirely conclu- 
 sive. If a husband make a voluntary assignment of his wife's chose in 
 action, this will not bind her in case she survives him ; if it be for valuable 
 consideration, however, she will be bound. Burnett v. Kinnaston, 2 \ eru. 
 401; Carteret v. Paschal, 3 Pr. Wms. 19Y; Bates v. Dandy, 2 Atk. 207. 
 To the same effect was the decision of our own Court of Equity in For- 
 rest 1'. Warrington, 2 Eq. Rep. 254. 
 
 The husband's assignee, however, is subject to this disability, tliat if he 
 is under the necessity of coming into Equity to make his claim effectual,
 
 56 SOUTH CAROLINA EQUITY REPORTS. [*64 
 
 Equity will not aid him but on the condition of his making a proper 
 provision for the wife. 
 
 When the Master of the Rolls, in White v. St. Barl)e, 1 Yes. & B. 405, 
 says that a husband can dispose of such property of his wife in expectancy, 
 against every one but the wife surviving, he speaks in reference to a 
 voluntary settlement which the husband had made. In this case there is 
 r.o doubt but that the assignment was for valuable consideration. Quar- 
 termus has not come into this Court seeking the property, but has it in 
 possession. 
 
 It is therefore ordered and deci*eed that the bill be dismissed. 
 
 From this decree the plaintiffs appealed on the ground : 
 
 That the plaintiffs are entitled to two-thirds of their mother's part of 
 her father's estate ; and an account and distribution should have been 
 accordingly decreed. 
 
 PaUer^on, for the appellants. If no assignment had been made by 
 Matheney, on the death of his wife, he would have been entitled to only 
 one third of her estate. How then can the assignment convey a larger 
 interest than he would have without it ? For the mere act of assign- 
 ment is not a reducing into possession, when he had no righ't to posses- 
 sion. The English authorities agree, that the assignee has the rights of 
 the husband and no more — and it will not be denied that an assignee, 
 even for valuable consideration, can resist the wife's right to a settlement, 
 ^p,-, Like V. Beresford, 3 Ves. 411 ;* McCauley v. Philips, 4 Yes. 19; 
 •^ -I Salisbury v. INTewton, 1 Eden, 370 ; 4 Yes. 515. The effect of 
 such an assignment is a question not decided in any reported case in this 
 State. In Forrest v. Warrington, 2 Eq. Rep. 254, the husband had the 
 right to possession ; the marital rights had attached by the act of assign- 
 ment. It has no application to this case. It can be shown on principle 
 and authority, that if the wife in this case had outlived her husband, her 
 interest as survivor would prevail against the assignment : and it follows, 
 therefore, that the assignment is void so far as the interest of the plaintiffs 
 is concerned. Burnet v. Kinnaston, 2 Yern. 401. 
 
 The cases cited sustain this position : That where the husband assign 
 the wife's estate vested in interest, but expectant on the death of a tenant 
 for life, to a purchaser for valuable consideration, and the wife and tenant 
 for life outlive the husband, the wife is entitled by right of survivorship ; 
 but if the husband survive, the assignee will take. The reason is, that 
 equity considers the assignment as an agreement by the husband that he 
 will reduce the property into possession — and that what a party agrees to 
 do shall be considered as done : and therefore, when the husband has the 
 power of reducing into possession, his assignment will be regarded as a 
 reduction into possession. On the other hand, when the husband has not 
 the power or right of reducing the choses into possession, his assignment 
 will not transfer the property until by some subsequent event he acquires 
 the right to reduce into possession, and then his previous assignment will 
 operate, and the property be transferred. TTonner v. Morton, 3 Russ. 
 Ch. 65; 3 Cond. Eng. 'Ch. Rep. 298; Hornsby v. Lee, 2 Mad. 16; 
 Purdew v. Jackson, 1 Russ. Ch. 1 ; Pierce v. Thornely, 2 Sim. 167 ; 2 
 Cond. Eng. Ch. Rep. 364. In England the law gives the husband the 
 right to his wife's choses after her death, by administration : and there
 
 *65] COLUMBIA, MAT, 1834. 57 
 
 such an assignment as this would operate. But the law is difforcnt in 
 this State ; for, by our statute of distributions, he takes only his sliare 
 as heir-at-law. In this case the tenant for life survived the wife, the 
 husband had no right to the possession, and therefore could not reduce 
 into possession during coverture ; and on the death of the wife, he is 
 only entitled to his share under the statute, which is all that the assign- 
 ment can operate on. 
 
 ^Elmore, for the defendants, contended, that Mrs Matheney took r:)././> 
 a vested interest under the will which her husband could convey, and ^ * 
 that his assignment would be valid against every one but the wife sur- 
 viving ; and he cited and relied on the following authorities : AVliite v. 
 St. Barbe, 1 Ves. and B. 405 : Chit. Dig. 507 ; Wildraan v. Wildmau, 
 9 Ves. 177 ; Hawkins v. Bryant, 2 Atk. 549 ; Bates v. Dandy, 2 Atk. 
 208; Chit. Dig. 509 ; Ripley v. Wood, 2 Sim. 165 ; Fitzer o. Fitzer, 2 
 Atk. 511 ; Sansum v. Dewar, 3 Buss. Ch. 91. 
 
 O'jSTeall, J. There is no doubt that the plaintiffs are entitled to have 
 partition of the testator's real estate, and an account of whatever sum still 
 remains in the hands of the executors of the testator to which their de- 
 ceased mother was entitled. That the Circuit decree did not make pro- 
 vision for these interests, arose from the fact that the effect of the husband's 
 assignment of his wife's chose in action, appeared to be the only matter 
 in controversy. 
 
 It is now necessary to examine the Circuit decree in relation to that 
 matter. I agree generally with ray brother Harper, that the husband 
 may assign the wife's chose in action, and that she would, if it was for a 
 valuable consideration, be bound by it. But this concession of a general 
 rule must be taken as subject to a qualification and exception, which is, I 
 think, very well stated by the Lord Chancellor : in the case of Ilonner v. 
 Morton, 3 Russ. 65, and 3 Cond. Eng. Chan. Rep. 298, he says, "When 
 the husband assigns the chose in action of his wife, one would suppose on 
 the first impression, that the assignee would not be in a better situation 
 than the assignor; and that he too must take some steps to reduce the 
 subject into possession, in 'order to make his title good against the wife 
 surviving. But equity considers the assignment by the husband aa 
 amounting to an agreement that he will reduce the property into pos- 
 session ; it likewise considers what a party agrees to do as actually done; 
 and, therefore, where the husband has the power of reduciufj the pro- 
 perty into possession, his assignment of the chose in action of the wife 
 icill be regarded as a reduction of it into possession. On the other 
 hand, I should also infer, that ivhen the husband has not the power of 
 reducing the chose in action into possession, his assignment does not 
 transfer the property till, by subsequent events he comes into the situa- 
 tion of being able to reduce the property into possession; and 
 *the7i his previous assignment will operate on his actual situa- r^g-j 
 tion, and the property will be transferred." 
 
 The Chancellor, in that case, after a very elaborate examination of all 
 the authorities, in which he showed clearly and conclusively that this 
 qualification and exception was well sustained by direct autiiority, and 
 that it was not opposed by any express adjudication, although several
 
 58 SOUTH CAROLINA EQUITY REPORTS. [*67 
 
 dicta would appear to conflict with it, held, that the vested interest of a 
 wife in remainder after a life estate, which had been assigned by husband 
 and wife for a valuable consideration did not pass under the assignment, 
 inasmuch as the husband died during the life estate, leaving his wife sur- 
 V viving; and the estate in remainder to the wife could not, therefore, have been 
 reduced into possession by him. A difl'erent result would have taken 
 place if the wife had died and the husband had survived the termination 
 of the life estate : in such a case, by the law of England, he would have 
 been entitled to the administration of his wife's estate, and by such admin- 
 istration he would have become the legal owner of her choses in action 
 without any liability to account for the same to her heirs. This would, 
 in this last mentioned case,, have made his assignment effectual, on the 
 ground "that he had the power to reduc^, the chose in action into pos- 
 session,'' for his own use. 
 
 In the case of Purdew v. Jackson, 1 Russell, 1, it was ruled that 
 " where husband and wife by deed executed by both, assign to a purchaser 
 for valuable consideration a moiety of a share of an ascertained fund, in 
 which the wife has a vested interest in remainder expectant on the death 
 of a tenant for life of that fund, and both the wife and tenant for life out- 
 live the husband, the wife is entitled by right of survivorship to claim the 
 whole of her share of the fund against such particular assignee for 
 valuable consideration." 
 
 In the same case, (at page 80,) Sir Thomas Plumer, the Master of the 
 Rolls, stated the result of his elaborate examination to be, that "all as- 
 signments made by the husband of the wifi^'s outstanding personal chat- 
 tel, which is not or cannot be then reduced into possession, whether the 
 assignment be in bankruptcy or under the insolvent acts, or to trustees 
 for the payment of debts, vr to a purchaser for valuable consideration, 
 pass only the interest which the husband has, subject to the wife's legal 
 right by the survivorship." 
 
 These two well considered English cases, must certainly be regarded as 
 
 ^„Q-. settling conclusively, that the husband's assignment can only ^operate 
 
 -' to pass the interest of the wife in her chose in action, when he had 
 
 or has the power to reduce it into possession for his own use ; if he never 
 
 has any such power, his assignee can have no rights. 
 
 The previous English cases, it appears to me, so far as I have had the 
 opportunity to examine them, may be very well reconciled with this 
 qualification and exception. They generally relate to bonds and mort- 
 gages in the actual possession of the husband, or to legacies to the wife 
 which are due and payable in 2^resenli, or become due and payable dur- 
 ing the continuance of the coverture. In all these cases it will be seen 
 that the husband has the right and power to reduce the chose in action 
 of the wife into possession for his own use, and hence his assignment has 
 effect. 
 
 The case of Bates v. Dandy, (reported more fully and accurately in a 
 note to'Honner v. Morton, 3 Cond. Eng. Ch. Rep. 301, than it is in 
 Atkins,) was, where the husband was in the actual possession of the 
 mortgages which had been set apart as his wife's share of her deceased 
 brother John Dyer's estate, but which were not assigned by the executor 
 during the lifetime of the husband : tlie husband assigned them to secure 
 a sum of £200 borrowed from the plaintiff's intestate: it was held, by
 
 *68] 
 
 COLUMBIA, MAY, 1834. 59 
 
 Lord Hardwicke, that the assignment was a valid assignment of the 
 mortgages, as the wife's chose in action, and that unless she redeemed by 
 paying the amount borrowed, with interest and costs, that the assignment 
 should become absolute. There can be no doubt that that case, which is 
 a leading one, is plainly reconcileable with the cases of Honner v Mor- 
 ton and Purdew v. Jackson. The husband there could have reduced the 
 chose in action into possession during his life ; for he could have com- 
 pelled John Dyer's executor to have assigned to him, and under his 
 assignment have foreclosed the mortgages and received the amount 
 secured to be paid by them. 
 
 In the case of White v. St. Barbe, 1 Yes. & B. 405, the Master of the 
 Rolls, Sir William Grant, speaking of an interest of a feme covert in 
 remainder after the death of a tenant for life, whifth had been settled by 
 her husband to the use of their children after the death of the tenant for 
 life, said, " A husband can dispose of such property of his wife in expect- 
 ancy, against every one hut the wife surviving ; and this is just such'a 
 settlement as the Court would have directed." In that case the wife died 
 in the lifetime of the tenant for life, and the husband took out ad- r^nn 
 ministration* upon her estate. The fact of the husband's surviv- L 
 orship and administration, according to the law of England, would have 
 entitled him to reduce his wife's chose in action into possession for his 
 own use, and hence his assignment or settlement of it was legal and valid. 
 
 The case of Forrest v. Warrington, 2 Eq. Rep. 254, is the only 
 reported case in this State on the subject ; it was the case of an assign- 
 ment for valuable consideration, of the Bank stock of the wife by the 
 husband. The husband had the legal possession of the stock, and it was 
 on that ground his assignment was sustained ; for Chancellor James, 
 who delivered the decree of the Court, (at page 2G1,) says, "After the 
 marital rights had attached, it only remained for the husband to reduce 
 the jirojoerty into possession, to be able in laio to assign the same ; and 
 this, it appears, he did by exercising acts of ownership over it ; first, by 
 receiving the dividends for three years ; second, by depositing the certi- 
 ficates for the same in the Charleston Insurance Company ; and third, 
 by assigning the same to the defendant." So far as that case is to 
 operate as authority, it unquestionably does not militate against the 
 qualification and exception which is stated by the Lord Chancellor in 
 the case of Honner v. Morton. 
 
 According to that qualification and exception, it is plain that in this 
 case, if the wife had survived the husband, his assignment would not 
 have defeated her rights in remainder after the death of her mother. 
 Does her death vary the case ? It is clear, that, in this State, it does 
 not. The husband's administration would not entitle him to reduce her 
 chose in action into possession for his own use. His only interest is as 
 one of his wife's distributees. The twelfth section of the Act of Dis- 
 tributions, (1791,) 1 Brev. Dig. Tit. 101, p. 424, directs that, "on the 
 death of any married woman, the husband shall be entitled to the same 
 share of her real estate, as is herein given to the widow out of the estate 
 of the husband, and the remainder of her real estate shall be distributed 
 among her descendants and relatives in the same manner as is heretofore 
 directed, in case of the intestacy of a married man." The fourteenth 
 section provides, " that in all cases of intestacy the personal estate shall
 
 *T0] 
 
 60 SOUTH CAROLINA EQUITY REPORTS. [*69 
 
 be distributed in the same manner as real estates are disposed of by this 
 Act." Looking back to the third section, it will be seen that it 
 establishes the rule of distribution of an intestate's estate when he dies 
 leaving a widow and children, to be *one-third to the wife, and 
 the remainder to be divided among the children. According to 
 the provisions cited, the real and personal estate of the wife, dying intes- 
 tate, is to be divided in the same manner as that of the husband. So 
 that John Matheney, on the death of his wife, was only entitled to one- 
 third part of her real and personal estate. His assignment of her interest 
 in remainder, after her mother's death, could only convey his distributive 
 share of it as his wife's heir at law, for during her life-time he could not 
 reduce it into possession ; and at her . death it was her estate, to be 
 administered after the termination of the life estate, and distributed 
 according to the Act of 1791. His assignee (Quartermus,) could, at 
 most, only have the right to administer on Mrs. Matheney's estate; and 
 as her administrator, he could only retain to his own use the share of her 
 husband under his assignment ; the remainder he would be bound to pay 
 over to her distributees. It follows, that the husband's assignment does 
 not defeat the rights of the plaintiffs 
 
 It is therefore ordered and decreed, that the Circuit decree be reversed, 
 that the writ of partition do issue to make partition of the real estate of 
 John Guess, sen., (deceased) ; that John Matheney and Patrick Quar- 
 termus do account to the plainlifls for so much of the share of their 
 mother, Rachel, of the personal estate of John Guess, sen., which the 
 said Patrick received from the executors under the assignment of the 
 said John, which may exceed the said John's one-third part of her whole 
 share of the personal estate of the said John Guess, sen., with the interest 
 thereon from the death of the tenant for life ; in the event of the said 
 John Matheney and Patrick Quartermus, being unable to pay the same, 
 the executors, John Guess and David Felder, will account for and pay 
 the same. It is also ordered and decreed, that John Guess and David 
 Felder, do account for and pay to the plaintiffs, the entire balance of 
 their mother Rachel's share of her father, John Guess's estate, remaining 
 in their hands after the said payment to Patrick Quartermus, with the 
 interest upon the said balance. 
 
 Johnson, J., concurred. 
 
 *T1] *Ex parte, John Yincent Martin and Caroline E. Martin. 
 
 Guardian intendinci; to remove from the State with her wards, the Court required 
 her before entering on the appointment to give bond for the return of one of them 
 at a suitable age to receive his education in this State, and of both, when required 
 by the Court. [*71] 
 
 Columbia, April, 1834. 
 
 This was a petition on the part of minor children, praying the appoint- 
 ment of Mrs. Sally Maria Martin, their step-mother, as their guardian. 
 
 De Sausstjee, Chancellor. Mr. Blanding appeared for the petitioners, 
 and Mr. Gregg for their paternal relations, when the petition was read,
 
 *71] COLUMBIA, JUNE, 1834. Gl 
 
 and the minors being present, were examined by me, and declared their 
 anxious desire that their step-mother, Sally ;>raria Martin, sliould be 
 appointed the guardian of their persons ; that they were extremely 
 unwilling to be separated from her, and that they had deliberately chosen 
 her for their guardian, after due consultation with their relations. Under 
 these circumstances, I am constrained to make the appointment, and I 
 do it the more readily from the fact that I am personally well acquainted 
 with Mrs. Martin, and know, that for judgment and attachment to these 
 children, she is entitled to the entire confidence of the Court, as she pos- 
 sessed that of her husband. But on the part of the relations of the 
 minors, it is objected that it is the intention of Mrs. Martin to remove to 
 the State of Maryland with the said John Vincent Martin ; that they are 
 unwilling that be should be removed from the State and receive his 
 education abroad. 
 
 After hearing the objection thus raised, and duly considering the same, 
 I am of opinion that it ought not to prevail. The minor is now only 
 fourteen years of age, and his education, preparatory to his collegiate 
 course, can safely be confided to his step-mother. But as it is the wish 
 of his relations who reside in this State, where his property is situated, 
 that he should receive his collegiate education here, I thiuk their views 
 in this respect ought to prevail. 
 
 It is therefore ordered that the said Sally Maria Martin be appointed 
 guardian of the persons of the petitioners, John Vincent Martin and 
 Caroline E. Martin ; and that the said John Vincent Martin be returned 
 to this State, in case he should be removed from it, as soon as he arrives 
 at the age of seventeen, or sooner, if he should be sooner prepared to 
 enter college ; and that he, or his *relations, be then at liberty to p^w^^ 
 move this Court for further directions respecting his education. ■- 
 
 And it is further ordered, that it be referred to the Commissioner of 
 the Court of Equity for Richland district, to report what will be a proper 
 annual allowance to be placed in the hands of the said guardian, for the 
 support and education of each of the said wards ; and that before making 
 up such report, Edmund Martin, the administrator of the estate of their 
 father, be notified of this order, and of the time and place of making the 
 said inquiry. 
 
 On appeal, the following is the judgment of the Court : 
 
 O'Neall, J. This Court is satisfied with the reasons assigned by the 
 Chancellor, for his appointment of Mrs. Martin as the guardian of the 
 petitioners. 
 
 It is therefore ordered and decreed, that his order making the appoint- 
 ment, be affirmed generally : and that the following addition thereto be 
 made and observed, to wit. : that before entering on the duties of the 
 said appointment, Mrs. Martin do, before and to the Commissioner of 
 the said Court, enter into sufficient and satisfactory security for the dis- 
 charge of her duty as guardian ; and also to return to this State, the 
 ward, John Vincent, according to Chancellor De Saussure's order ; 
 and both of her wards, whenever the Court of Equity for Richland dis- 
 trict may require it to be done. 
 
 Harper and Johnson, Js., concurred.
 
 62 SOUTH CAROLINA EQUITY REPORTS. [*72 
 
 James Chesnut and John Chesnut v. The Fire and Marine 
 Insurance Company, Sarah Yaughan, Benjamin Bineham, Wm. 
 Blanding and Geo. L. Champion. 
 
 Funds being in possession of the Court (or subject to its order), the Court ordered 
 notice to be published for creditors to come in and establish their claims in op- 
 position to one of the defendants, who claimed it as a principal creditor: — Held, 
 that all the creditors who came in under the order were rightly in Court, properly 
 parties to the case, and bound by the proceedings : and an order of the Chancellor 
 requiring them to file a cross bill, on order to establish their demands, reversed. 
 [*84] 
 
 Order of the Chancellor quashing the reports of a former Commissioner on claims 
 of creditors, because it did not appear that before making them up he had givea 
 the parties notice, or an opportunity afterwai-ds to contest them reversed. In 
 the absence of proof, it will be presumed that the Commissioner had done his 
 duty and given due notice ; but under the circumstances, the reports referred 
 back to the present Commissioner, with instructions to regard them && prima facie 
 evidence in favor of the claims reported, but with leave to falsify them by proof. 
 [*85] 
 
 Camden. — 
 
 Wilie Vaughan, by deed dated 12th April, 1819, in consideration of 
 natural love and affection for his wife and children, and also in considera- 
 tion of five dollars, conveyed to Benjamin Bineham, Wra. Blanding, and 
 ^Hq-i Greorge L. Champion, a,ll his estate, in trust, for his *\vife, Sarah 
 -• Vaughan, for her separate use for life, and after her death, in trust 
 for such of the heirs of her body, by the said Wilie begotten, and in such 
 manner and portions, as she by deed or will, may limit and appoint, and 
 in default of appointment in trust for Claiborne Yaughan, Eliza Yirginia 
 Yaughan, and such other heirs of the body of the said Sarah, by the 
 said Wilie, hereafter to be begotten, as may survive the said Sarah, share 
 and share alike, &c. The property to be in no manner liable to the 
 future debts of Wilie Yaughan. The trustees, or a majority, are author- 
 ized to collect the debts due, and apply them to paying just debts, and 
 the deed thus proceeds: "But as the debts due to me will be insufficient 
 to pay the debts I owe, for the complete and final discharge of my debts, 
 the said William, Benjamin, and George, or a majority of them, are 
 hereby authorized and empowered to sell and dispose of, in such manner 
 and on such terms as they, the said William, Benjamin, and George, or a 
 majority of them, shall think fit, any portion of the said property, real or 
 personal, and to make good titles therefor. And after the debts are 
 paid, they, or a majority, are authorized to sell the lands and make titles, 
 and invest the proceeds in such way as they, or a majority, shall think 
 fit, subject to the limitations, directions and purposes above set forth." 
 
 Bineham and Blanding declined the trust. George L. Champion 
 alone acted, and sold to John and James Chesnut, the plaintiffs, several 
 of the negroes, for which he took their bond for $3,000 — and sold to 
 James Chesnut three of the negroes, for which he received cash. He 
 sold the bond to the defendants, the Fire and Marine Insurance Company, 
 at fifteen per cent, discount and one per cent, brokerage. 
 
 On the 15th of January, 1823, the plaintiffs filed this bill against 
 Champion, the Insurance Company, the two other trustees, and Sarah 
 Yaughan, setting forth their purchase of the slaves from Champion
 
 *73] COLUMBIA, JUNE, 1834. G3 
 
 alone, the other trustees havinj^ declined to act. That there were 
 specific liens upon the slaves, and they required the proceeds of the sales 
 to be applied to discharge them. They state that Champion had assigned 
 their bond to the Insurance Company, who demanded payment : that 
 plaintiffs ought not to pay until Champion caused the title to the slaves 
 to be perfected by procuring the assent and joint sale by a majority of 
 the trustees, and by applying the amount of sales to discharge the spe- 
 cific liens. They pray to be relieved from their contracts, or their title 
 to be ^confirmed and quieted against the claims] of the cestui que r^.^ . 
 trusts and the execution creditors. 
 
 Blanding and Bineham answer that they declined the trust. 
 
 Champion's answer admits the sale of the negroes, and that Mrs. 
 "Vaughan, as executrix of Wilie Vaughan, joined in the sale : that he 
 transferred the bond to the Insurance Company, who gave him the money 
 for it, but at fifteen per cent, discount, and that he expended the money 
 as trustee of Yaughan, in discharge of debts due by the estate and the 
 general exigencies of the estate ; that he alone acted under the trust. 
 That as the proceeds of the negroes have been appropriated to the benefit 
 of the trust estate, the bond or sale ought not to be set aside or cancelled. 
 That a trustee ought to be appointed by the Court to act with him, with 
 orders to confirm the titles, as the estate has had the benefit of the sales. 
 
 The Charleston Fire and Marine Insurance Company answer, that the 
 bond was assigned to them on the 23d May, 1821, by endorsement thereon 
 of George L. Champion, acting trustee of the estate of Wilie Yaughan, 
 and Sarah Yaughan, his executrix and residuary legatee. That the 
 Company knew nothing of any discounts against the bond, nor of the 
 nature of the debt. That Champion had a right to sell the slaves, either 
 to pay debts or for the other purposes of the trust. That plaintiffs have 
 a good title to the slaves and have nothing to do with the fund that may 
 come into Champion's hands. That, as trustee, he was authorized to 
 receive the money on the bonds, even if bound to apply it to any existing 
 demands. That the advance of the money by them on the bond must be 
 viewed in the same light as if the plaintiifs had paid it, and that they 
 are therefore entitled to hold the bonds and receive the amount in dis- 
 charge of their advances to Champion and Sarah Yaughan. That they 
 are purchasers without notice, and if Champion is bound to apply the 
 proceeds to any particular purpose, he has received the amount, and the 
 Court may order him to apply it as it pleases. They trust that he will 
 be ordered to make a good title to the slaves, and that the plaintiffs be 
 ordered to pay them the bond. 
 
 The Commissioner reported on the 10th February, 1824, as follows : — 
 That on the 12th April, 1819, Wilie Yaughan made a deed of trust to 
 the trustees with power to sell his estate to pay his debts, and for the 
 benefit of Sarah Yaughan, his wife, and his children. That the sales 
 made by G. L. Champion and Sarah *Yaughan were without -^y^ 
 sufficient authority, because Bineham, Blanding and Chami)ion ^ 
 were appointed trustees, and a majority were authorized to sell ; and 
 Mrs. Yaughan could only sell her interest, which was a remote one. He 
 recommends a confirmation of the sale, because the price is greater than 
 could be got now. — That the funds, or the greater part arising from the 
 sales, were applied to pay pressing demands against Wilie Yaughan, and 
 in support of his family, and that subsequent sheriff's sales have been
 
 64 SOUTH CAROLINA EQUITY REPORTS. [*75 
 
 made ^o an amount sufficient to discharge the liens iu plaintiff's bill 
 mentioned. 
 
 Order, February Term, 1824. — On motion, Ordered that the report be 
 confirmed, and that plaintiffs pay the amount of the bond yet remaining 
 due, into the hands of the Commissioner, subject to the future order of 
 this Court. Referred to Commissioner to report at the next Court upon 
 the claims of persons entitled to this fund, and that G. L. Champion 
 account before the commissioner for his application of the funds which 
 came into his hands from the sale of the bond to the Insurance Company, 
 and that the Commissioner give notice to the creditors to come in and 
 make their claims. 
 
 A decree was pronounced at the same term by Chancellor, De 
 Saussure, upon the claims of Drs. Blanding, De Leon and Anderson, 
 ^yho had proved their demands, and claimed payment out of funds raised 
 by sale of part of the estate of Wilie Vaughan, under the trust deed. 
 The only question was as to interest, which the decree allowed contrary 
 to the report. 
 
 Order, June Term, 1825. — Upon motion, it is Ordered that the funds 
 now in the hands of the Commissioner, and such as may come into his 
 hands before a final report, be paid over to the Fire and Marine 
 Insurance Company, subject to the rights of the contesting claimants, 
 and subject to the further order of this Court. 
 
 At June Term, 1827, the Commissioner, Mr. Evans, reported, viz : — 
 "That on the 12th April, 1819, Wilie Yaughan assigned his whole 
 estate to Biueham, Blanding and Champion, in trust for his family, and 
 to pay his debts, giving a majority of them power to sell for that pur- 
 pose. Champion alone accepted, managed the estate, made considerable 
 sales of personal property, and applied part of the proceeds to pay the 
 debts due by W. Yaughan before the assignment, and part for debts 
 contracted by himself as trustee. He sold several negroes to John 
 Chesnut, for which he took the joint bond of John and James Chesnut 
 5^w„-| for *3000 ; several negroes *to William Trapp, and took the joint 
 '^-l bonds of Wm. Trapp and A. F. Peay for $2326. On the 2d June, 
 1821, these bonds were sold to the Fire and Marine Insurance Company 
 of Charleston, at large discounts ; Chesnut's at fifteen per cent, and 
 Trapp's and Peay's at ten per cent., and one per cent, on the whole for 
 brokerage. Chesnut's bond have been enjoined by this Court, and 
 have been paid. Trapp's and Peay's bonds were not specially enjoined. 
 In consequence of these transactions between the trustee and the Insur- 
 ance Company, I have reported them creditors of the said estate, after 
 the assignment, to the amount of money actually paid by them for the 
 said bonds ; this Court having already decreed that George L. Champion 
 acted in the sale of the negroes without sufficient authority. The 
 amount of demands against the estate which have been rendered to the 
 Commissioner, and were contracted previous to the deed of trust, is 
 
 $6,038 50 
 Amount of demands, including the sums due to the Insurance 
 Company on account of their purchase of Chesnut's bond, 
 and Peay's and Trapp's bonds, and interest to the 23d 
 June, 182T and debts contracted by the trustee, or other- 
 wise, .... . . 8,112 T8 
 
 $14,151 28
 
 *76 ] COLUMBIA, JUNE, 1834. 65 
 
 That Wilie Yaughan \Yas appointed guardian of his children in 1813, 
 and entered into the usual bond, and acted till 1820, when his letters of 
 guardianship were revoked. He never made a return. He planted in 
 common with his children, the place called Rocky Branch, and was 
 entitled under the authority of this Court to one half the proceeds of the 
 crops. His children, on this account, must have large demands against 
 his estate, as good crops were generally made, and produce high ; but 
 in consequence of his having made no returns, I am unable to fix on any 
 amount. Wilie Yaughan also sold in 1819 or '20, a negro woman. 
 Beck, and child, tlie propei'ty of his children, to James Gardner, for 
 $800. The sale was made without the authority of this Court, and has 
 never received its sanction or confirmation. I recommend that his 
 estate be chargeable with this amount, together with the interest from 
 the time of sale." 
 
 The report states that the " available funds belonging to the estate of 
 Wilie Yaughan, including the bonds of John and James Chesnut, and 
 Trapp and Peay, amount to $12,047 34 ; and recommends *that r^hw 
 the debts reported to be due before the assignment, and stated in L 
 the schedule attached to this report, and the amount which may be found 
 to be due to the children of Wilie Yaughan, be first paid ; and the 
 creditors of the trustee, after the assignment, be next paid, in equal 
 degree." 
 
 The report further recommends, that the " bond of John and James 
 Chesnut, which has been paid by the order of the Court, be delivered 
 up to them ; and that the whole real estate of Wilie Yaughan, in the 
 assignment, and not sold by the trustee, be sold by the Commissioner on 
 a credit." 
 
 The following report of the same Commissioner, without date, also 
 appears in the proceedings : 
 
 "That on the 12th April, 1819, Wilie Yaughan assigned to Bine- 
 ham, Blanding and Champion, in trust, his whole estate, for the benefit 
 of his family and to pay his debts ; authorizing them or a majority, to 
 sell any part of his estate for the purposes aforesaid — Gr. L. Champion 
 alone accepted the trust, and managed from April, 1819, to January, 
 1824, and sold, to James and John Chesnut, negroes to the value of 
 $3000 ; and to William Trapp and A. F. Peay, negroes to the value of 
 $2,093 40. This Court, in a former decree, decided that Champion 
 acted without sufficient authority in the management of the estate, but 
 confirmed the sale to John and James Chesnut, because it was favorable 
 for the estate. The sale to Trapp and Peay has not as yet been 
 confirmed. 
 
 "I report that judgments to the amount of $4,319 42, have, since the 
 assignment, been recovered against Wilie Yaughan and his trustee, 
 Champion ; and property has been sold by the sheriff of Kershaw 
 
 District, to the amount of $ , and applied to the said judgments, 
 
 and the estate is ijow wholly insolvent. 
 
 "I report that Wilie Yaughan, in 1813, became guardian of his 
 children, and acted as such until his death, in 1821, without making any 
 return of his acting as such to this Court, and that his children, in con- 
 sequence of his guardianship, are creditors of his estate, to the amount 
 of $4,418.
 
 66 SOUTH CAROLmA EQUITY REPORTS. [*77 
 
 "I report that at the time of the assignment, on the 12th April, 1819, 
 all his creditors ought to have been placed on the same footing, and paid 
 in proportion to their several demands. 
 
 " I recommend that a trustee be appointed to carry into effect the 
 intention of the assignment, and that the persons who have obtained 
 ^^o-i judgments and received the whole of their demands be made *par- 
 * -J ties to this bill, and be compelled to refund what they have re- 
 ceived over and above their dividends. 
 
 " I report that James and John Chestnut have paid the amount of 
 their bonds which were sold by G. L. Champion to the Fire and Marine 
 Insurance Company, and the simple interest on the same, into this Court 
 in pursuance of an order of this Court, June Term, 1824. I therefore 
 recommend that the said Company be compelled to deliver up said bonds 
 on the payment to them of the principal qnd interest, deducting, how- 
 ever, the interest on the same during the time it was impounded by this 
 Court." 
 
 The cause was continued from term to term, until it came before 
 Chancellor Johnston, special term, November 1883. Mr. W. F. De 
 Saussure then moved to confirm the two last reports of the ex-cora- 
 raissioner, Evans, one dated June, 1827, and the other without date 
 And as incident thereto, that the Court should take up and consider the 
 question, who is entitled to the money secured by the bond of the plain- 
 tiffs described in the pleadings. 
 
 Mr. W. Mayrant opposed the motion, on the ground that the reports 
 were made without authority and without summoning the parties ; and 
 that unless the reports are properly made up, the rights of the claimants 
 cannot be properly decided. 
 
 The Chancellor granted an order quashing both the last reports — 
 " because no evidence was reported with them to enable the Court to 
 judge of their correctness or incorrectness, and because it did not appear 
 that before the Commissioner made them up, he had called the parties 
 interested before him, or given them any opportunity to attend to their 
 rights ; nor had they notice of the reports so as to enable them to except. 
 Besides, it appeared that for the last seven or eight years, the Court had 
 declined to act on the reports, which (thus travelling from the Commis- 
 sioner's office to the Court and back again, each party insisting that the 
 other should be the actor, which was retorted,) formed a serious impedi- 
 ment to the case." 
 
 Mr. Mayrant, then on the part of the Insurance Company, moved that 
 the bill be dismissed as to them for want of prosecution, as well as 
 because, after the confirmation of their purchases, there were no longer 
 any equities in the bill entitling it to be retained as against them. At 
 the same time Mr. Blanding moved that the claims of Yaughan's credi- 
 tors, heretofore rendered and not established, be referred to the present 
 ^wQ-1 Commissioner to report thereon, *distinguishing such as were 
 -I contracted before and after the execution of the deed of trust. 
 That the accounts of Champion be referred, and that he account; and 
 that the Commissioner report the amount of funds received and how 
 applied. 
 
 Both motions were refused, but the Court passed an order to the 
 folio win"; effect : —
 
 *79] COLUMBIA, JUNE, 1834. 67 
 
 That the bill be retained but further proceedings in the cause be 
 suspended. That persons claiming the fund in opposition to the Insu- 
 rance Company, have leave to file a cross bill laying claim to the same, 
 setting out the ground of their claims, and making the parties necessary 
 
 to a full decision : that unless such bill be filed by the day of 
 
 this bill stand dismissed as to the Insurance Company, without 
 
 prejudice. 
 
 Chancellor Johnstox. The bill was oot dismissed at present, because 
 the Court, by confirming the sale to the Chesnuts, and ordering the fund 
 to be paid in, and allowing creditors to render their cjaims, had, in some 
 sort, pledged itself to see their claims duly dealt by ; and if the bill were 
 now dismissed, injustice might be done by the lapse of time or act of 
 limitations, to which their dependance on the pledge of the Court may 
 have subjected them : to say nothing of the expences to which they may 
 have been subjected on the same confidence. 
 
 Proceedings were stayed, because the experience of eight or ten years 
 was proof, that, without a cross bill, the responsibility of becoming actor 
 could not be thrown on any one, and in the present course, there was no 
 likelihood of ever seeing the end of the cause. Whose duty was it to 
 press George L. Champion to an account ? Were Yaughau's creditors 
 bound to do it ? Were they entitled to this fund until they established 
 a deficiency of other assets, and that there was no other resource ? If 
 not — if they were bound to show such exertion and deficiency, what 
 means had they to enforce such accounting ? Where were their charges ? 
 How had he been allowed the benefit of this answer ? Again, did it not 
 appear from the reports and other proceedings, that there were trust 
 assets which had never come to his hands, and never been disposed of? 
 In whose hands are they? Who claims them? How are the claimants 
 of them, whether they be executors, legatees, cei-tui que trusts, or others, 
 represented here ? How can a decree disposing of them be made, unless 
 these be represented ? *And again, do not the proceedings disclose r-j^Qn 
 that Champion made other sales on no better authority than this ? ^ 
 Are the creditors, if entitled at all, entitled to be paid solely out of this 
 fund ; or ought the other purchasers to contribute ? Must not the credi- 
 tors then bring them in also ? It appears that Mrs. Vaughan w^as an 
 obligee, and joined in the assignment, thus enabling G. L. Champion to 
 receive funds. If, by reason of his misapplication of them, the Insurance 
 Company are to be deprived of the bond, are they to be without a decree 
 against him, — or rather, ought she not to be first liable ? But she is not 
 one of the parties Who can make her, or any one else who has not 
 voluntarily come in, a party, as the proceedings now stand ? Is it desir- 
 able in a Court of justice, to stick to a course of practice, whereby the 
 justice of the case cannot be reached ? 
 
 A cross bill was allow^ed because the Court being committed, and the 
 present course not allowing of a satisfactory decision, no other means 
 suggested itself. What other is there ? Upon the bill filed in this case, 
 could any creditor obtain a decree against the plaintiffs, upon a substan- 
 tive demand, distinct from the matters stated in the bill, without a cross 
 bill ? Under anything like sound practice, I apprehend not. And can 
 a defendant obtain a decree against a co-defendant upon easier terms
 
 68 SOUTH CAROLINA EQUITY REPORTS. [*80 
 
 than against the plaintiff? Is a co-defendant any more to be deprived 
 of an answer to the matter laid to his charge than the plaintiff ? Is he 
 to be surprised ? If not, how is he to be guarded against it when every 
 thing lies in mere breath ? What is he to meet ? What witnesses is he 
 to summon ? What is he to disprove ? It is worse than this. Is it 
 not ? If the creditors here obtain a decree upon the present proceedings, 
 is it not asserting, not only that co-defendants can have a decree against 
 each other, when they could not against the plaintiffs, but that one who 
 is not a defendant at all, can haye it against one of the defendants ! And 
 all this upon mere parol ! 
 
 There is no way equal to the most regular way. None speedier — none 
 more conducive to justice ; none, on the whole, less expensive ; none in 
 which the record can be made more effectually to carry the justification 
 of the final judgment — none furnishing st^ch means of correcting it, if 
 erroneous ; and, certainly, none showing so clearly what has been decided, 
 between whom, and who are bound or barred by the judgment. When 
 *sn P^^^iss are *asking leave to take some short cut in practice — like 
 -I persons about to open a friendly suit, how fair they are ! What a 
 mighty anxiety to go upon the merits ! We only want to ascertain our 
 real rights : everything is agreed on : we understand each other : no need 
 of blacking paper, or making up a regular record : why then load us with 
 expense by compelling us to go by rule ? But just yield to them — give 
 up one sound principle of law — break down one wholesome rule of prac- 
 tice — and see the consequences. Each is instantly tempted to take 
 advantage of the other — the one cheats — the other is surprised — one 
 insists that the onus of some duty is upon his opponent — he denies and 
 retorts — everything gets into confusion — the rules to restrain and govern 
 them have been given up, and at length they come in at the final judg- 
 ment, irritated and discontented. Nor is this all — no one can tell what 
 that judgment should be, nor whether it will meet the merits of the cause. 
 It is above correction if never so wrong— and, worst of all, it is ten to 
 one, if half the parties or their privies are bound by it. And at last, the 
 parties angered by the contest and instructed by experience, set about a 
 regular suit, to go over the same ground again. This is liberal practice 
 — this is cheap litigation. It corrupts most, satisfies none, and impov- 
 erishes all. 
 
 The Insurance Company was, by the order, allowed to be the defendant, 
 or one of the defendants, because some one must bo, and they might as 
 well be as any others. 
 
 It appeared also, that their right to the fund was prima facie good, 
 and it was but right that those who would impeach it should be put to 
 do so — that whenever the Court confirmed the sale, that of itself imparted 
 a consideration to the bond which prima facie enured to the obligees, 
 and that the Company holding the bond, even without an assignment, 
 held such a right to payment as not only Equity but Law recognizes. 
 They could have sued and collected in the name of the obligees. That, 
 although the Court at the time of confirming the sale, ordered the fund 
 into Court, directing a litigation for it, that did not amount to any 
 declaration that as a condition of the confirmation to the creditors or 
 cestui que trusts should have it. If that had been intended as a condi- 
 tion of the confirmation, the fund would at once have been decreed to
 
 *81] COLUMBIA, JUNE, 1834. G9 
 
 the creditors or cef^tui que trvsfs. The terms of the order showed no 
 such condition. Upon the terms of the order the Insurance Company 
 might as well insist that the confirmation was *upon condition r- . 
 that ihey should receive the money, as the creditors could. The L °-' 
 only condition of the confirmation was, that the money be paid in to be 
 litigated for. The cross bill carries out that condition into practice. 
 
 In one thing I am afraid I was wrong. I forgot to declare by the 
 order, that for default of filing a cross bill by a given day, the Insurance 
 Company should be at liberty to move for the dismissal of the bill ; 
 instead of declaring that in such case it should stand ipi^o facto dismissed. 
 
 John C. Vaughan, Claiborne C. Yaughan and Eliza Virginia 
 Yaughan, children of Wilie Yaughan, and creditors of his estate, called 
 in under the order of the Court to establish their claims in this cause, 
 appealed from the decretal order of Chancellor Johnston, ordering the 
 bill to be dismissed nisi, on the following grounds : — 
 
 1. Because all the proper parties are before the Court necessary to a 
 final adjudication of the cause, and they are in this Court by virtue of its 
 orders made in June, 1824, and June, 1825. 
 
 2. Because, if it be necessary that another bill be filed to ascertain to 
 whom the proceeds of the bonds should be paid, such bill should be filed 
 by the Insurance Company. 
 
 3. Because the orders made by this Court, at June Term, 1824, and 
 June Term, 1825, have never been appealed from, and without such 
 appeal, cannot now be reversed by an order of a subsequent Chancellor, 
 overruling those orders and giving a new direction to the cause. 
 
 4. Because it is the duty of the Insurance Company to bring George 
 L, Champion to account ; and it is their duty to show that he is in 
 advance to the estate of Wilie Yaughan, in order to subrogate them- 
 selves to his rights, and thus establish their claim to the proceeds of the 
 bond of the Chesnuts ; and it is not the duty of these appellants. 
 
 5. They further appeal from the Chancellor's decree refusing to confirm 
 the reports made by the Commissioner at June Term, 182T, and the 
 undated report, (of June Term, 1828,) establishing the amount due by 
 the estate of Wilie Yaughan, to his children ; and they move to confirm 
 said reports. 
 
 6. And if said reports are not confirmed by this Court, they further appeal 
 from the order refusing to grant the motion made by *Mr. Bland- r^co 
 ing for a reference, and move this Court to grant the said order. ^ 
 
 The cause was argued by Mr. Wm. F. De Saussure on these grounds, 
 before the Court of Appeals, in December, 1833, and the following judg- 
 ment pronounced in that Term. 
 
 O'Neall, J. It appears that the price of the negroes bought by the 
 plaintiffs, and belonging to the trust estate, was, on the decree confirming 
 their title, paid into Court, "subject to the future order of the Court.'' 
 In the meantime, it was referred to the Commissioner to rej)ort upon the 
 different claims to this fund ; and a part of the order of reference directed 
 "that G. L. Champion account before the Commissioner for his ai)plica- 
 tion of the funds wliich came into his hands from the sale of the bond to 
 the Insurance Company, and that the Commissioner gave notice to the 
 YoL. I.— 28
 
 70 SOUTH CAROLINA EQUITY REPORTS. [*83 
 
 C7'editors to come hi and wake tJiei?' claiins." Under this part of the 
 order, several creditors came in, established their demands, and obtained 
 a decree directing payment. At June Term, 1825, the fund in Court, 
 and such as might come to the Commissioner's hands before the final 
 report, were directed to be paid " to the Fire and Marine Lisurance 
 Company, subject to th.f rights of the contesting claimants, and subject 
 to the further order of this Court.^^ Since this order, the Court has 
 done nothing further than continue the cause from term to term, under 
 reference, until November, 1833, special Term, when the cause came on 
 before Chancellor Johnston for trial. Two reports of the late Commis- 
 sioner, establishing a large sum due by the trust estate to John C, 
 Claiborne C, and Eliza Virginia Yaughan, were presented for confirma- 
 tion, which were resisted by the Fire and Marine Insurance Company; 
 and the Chancellor quashed the reports, and ordered this bill to be 
 dismissed as to the Fire and Marine Insurance Company, unless the 
 persons claiming the fund in opposition to the Company should file a 
 cross bill within a limited thne. 
 
 From this decree, John C, Claiborne C, and Eliza Virginia Vaughan, 
 appeal on various grounds, which make the following questions : — 1st. 
 Were the appellants rightly in Court, under the orders made in the cause 
 as creditors claiming the funds ? 2d. If so, had the Chancellor a right 
 to quash the Commissioner's reports, and to cast upon the appellants the 
 burden of filing a bill against the Fire and Marine Insurance Company 
 to try the right to the said fund ? 
 
 *84T ^^' ^^® ^^^^ ^^ controversy came properly into the hands of the 
 -' Court ; for, on confirming the plaintiffs' titles to the slaves which 
 they had bought, it was the business of the Court to see that their price 
 was applied to the purposes of the trust which had authorized their sale. 
 This could not be done by leaving the fund to be paid by the Fire and 
 Marine Insurance Company : they were not creditors of the grantor of 
 the trusts, but of his trustee, Champion. They bought the plaintiffs' 
 bond from him, but the title to the negroes which he sold, and for which 
 the bond was given, was defective, he having no power to make the sale. 
 They could not have recovered the bond from the plaintiffs on account 
 of this defect of title. When the Court of Equity confirmed the title, 
 they assumed the trust, and the price was properly payable to them, as 
 the fund applicable to the payment of the debts of Wilie Vaughan, in 
 place of the slaves sold. The Fire and Marine Insurance Company 
 having obtained nothing by their purchase of the bond, had a plain right 
 to recover the amount paid by them to Champion for the bond from 
 him ; and if they could show that he was in advance to his trust estate 
 and was insolvent, then to take his place as a creditor of the trust, to the 
 amount of the sum paid by them to him, if he was so far in advance to 
 the estate ; if not, to the extent he was. This is the state of the claim 
 of the Fire and Marine Insurance Company : that it was properly before 
 the Court is not denied. To decide whether it would entitle them exclu- 
 sively to the money, three facts had still to be made out : 1. That there 
 ■were no unsatisfied creditors of Wilie Vaughan. 2. That the trustee. 
 Champion, was in advance for the trust estate to a sum equal to the 
 fund in dispute; and 3. That he was insolvent. — Until the first was 
 established, the Fire and Marine Insurance Company could have no
 
 *84] COLUMBIA, JUNE, 1834. 71 
 
 exclusive right to the whole fund. The most they could contend for, on 
 establisl)ing the other two facts, would be to come in rateably witii the 
 other creditors of the trust, if there were any. To ascertain whetlier 
 there were any creditors, all the creditors of Wilie Yauglian were 
 requested by notice to come in and establish their demands. All who 
 come in under that notice are parties to the cause, and are bound l)y all 
 the proceedings. The appellants, it appears, came in under the order, 
 and have (j^ei-hajys on an ex parte reference) satisfied the Commissioner 
 of the debt due to them by Wilie Yaughan. Tliis made them properly 
 parties in Court, and as much entitled to its favor as the *Fire and r^or 
 Marine Insurance Company. For, notwithstanding they are in •- 
 possession of the fund, they are in possession subject to the further order 
 of this Court, and the appellants were moving to have it paid over to 
 them. In such a case the Court must decide on the hostile rights of the 
 two claimants ; and to enable it to do so, it might be referred to the 
 Commissioner to ascertain and state the facts upon which the Court is 
 called upon to decide. In this way, every thing would appear by the 
 record. There is nothing irregular in such a course of proceeding. It 
 is every day's practice on a creditor's bill, to bring all the creditors before 
 the Court by a notice requiring them to come in and prove their demands. 
 In such a case there may be hostile and conflicting claims among the 
 creditors ; upon them the Court must decide on the coming in of the 
 Commissioner's report. A fresh bill would hardly be required to be filed 
 in such a case, to make the creditors, coming in under the notice, parties 
 before the Court. 
 
 2. If the Commissioner's reports were made up entirely on an ex parte 
 hearing of the plaintiffs, they might have been set aside ; but I have 
 looked through the Chancellor's report in vain to see any evidence of the 
 fact that they were so. In the absence of proof, the legal presumption 
 would be, that the Commissioner had done his duty and given due notice 
 before hearing the plaintiffs. That presumption is, I think, strengthened 
 by the entries on the dockets at June Terra, 182*7 and 1828. In all 
 events, I think the Chancellor erred in quashing the reports and ordering 
 the appellants to file the cross hill, (as he has called it). We have seen 
 they were properly parties ; and notwithstanding there had been great 
 delay and negligence in bringing the cause to trial, it is no more to be 
 imputed to them than it is to the other parties. If the case presented 
 to him did not justify him in pronouncing a final decree in favor of the 
 appellants, he ought at least to have sent them back to the Commissioner, 
 with instructions. Situated as the case is, I do not think that we ought 
 to confirm the Commissioner's reports of 1827 and 1828, and direct the 
 fund to be paid to the appellants. 
 
 It is ordered and decreed that the order quashing the reports, and the 
 decree of the Chancellor, be reversed : that the cause be remanded to 
 the Circuit Court, and that the Commissioner be directed to examine 
 and rei)ort upon the claims of the creditors of Wilie Yaughan, which 
 have been rendered to the former Commissioner and not decreed ui)on ; 
 distinguishing which debts were contracted* before and which after |-^g„ 
 the execution of the deed of trust : in such investigation, the Com- L 
 missioner's report of 1827, and the undated report, (supposed 1828,) 
 will be 25nma/acie evidence of the claims of the appellants; and the
 
 72 SOUTH CAROLINA EQUITY REPORTS. [*86 
 
 Fire and Marine Insurance Company will have the right to examine and 
 point out from the reports, or the evidence on which they were founded, 
 any part or parts of the said claims which have been allowed improperly; 
 and upon them the present Commissioner will decide and report : so 
 too, they may by proof disprove the whole or any part of the said claims, 
 and upon the proof which they may adduce, the Commissioner will 
 decide and report. 
 
 It is also ordered and decreed, that the order of February Term, 1824, 
 requiring Champion to account for the funds which came into his hands 
 for the sale of the bonds he extended, and that the Commissioner do 
 forthwith take the account ordered by it. 
 
 Johnson, J., and Harper, J., concurred. 
 
 Mr. Mayrant, the counsel for the Insura.ice Company, being absent at 
 the last Term of the Court of Appeals when the foregoing opinion was 
 delivered, by leave of the Court, at this sitting submitted the following 
 grounds in support of the Circuit decree : 
 
 1. That the Commissioner's reports are unaccompanied by evidence; 
 and were made up on ex parte hearings, as appears by the Chancellor's 
 decree, and his decretal order quashing the reports ; which last recites 
 the fact, that it did not appear that the parties had been summoned to 
 attend the references, and which order was not before the Court at its 
 last sitting. 
 
 2. That Mrs. Sarah Yaughan, the executrix and residuary legatee of 
 Wilie Vaughan, was never made a party to these proceedings ; and that 
 persons claiming in opposition to her and to the Company should pro- 
 ceed by a cross bill and make her a party. 
 
 3. That the orders heretofore made suppose the Company to be 
 prima facie entitled to the fund, and no legal or equitable demands 
 having been established against it, the decree of the Chancellor la 
 relation thereto was right. 
 
 'XQ^^■^ *0n which the Court delivered at this Term, the following judg- 
 ■"^^J ment: 
 
 O'Neall, J. At the instance of the defendant's counsel, (who was 
 absent at the last Term, when this cause was decided, and who it seems 
 did not receive until after the adjournment of this Court, the notice 
 of appeal, which had in due time been forwarded to him by mail,) we 
 have looked into the former opinion and are perfectly satisfied with its 
 correctness. 
 
 We did suppose from the papers before us at the last Term, that Mrs. 
 Sarah Vaughan was regularly a party in Court. For her name is set 
 down in the report of the cause as one of the defendants ; and she 
 appeared to the case by her counsel, Stephen D. Miller. But it seems 
 that process of subpoena to answer was not prayed against her ; and she 
 is not therefore regularly a party in Court. This cannot, however, 
 affect the result of this care. As executrix or residuary legatee, she has 
 no interest in it. The contest is between creditors ; and the question is 
 — who are entitled to a fund arising under a trust deed to which she was 
 not a party ? 
 
 The motion is dismissed, 
 
 Johnson, J., and Harper, J., concurred.
 
 ♦ Q-T 
 
 87] COLUMBIA, JUNE, 1834. 73 
 
 Thomas Sumter, adra'r. of Thomas Sumter, Sen., v. Josiah B, 
 Morse, Cyrus Morse, and A. T. Morse. 
 
 If there be mutual runnino; accounts between the parties and any of the items have 
 accrued within the time of the statute of limitations, this amounts to an acknow- 
 led;;ment of the previous account and a promise to pay. [*9-] 
 
 The plaintiff, (an administrator,) claimed demands in his bill against the defendants 
 extending down to a period within the statute: and set forth that he as the agent 
 of his intestate had frequently calleiJ on the defendants and requested them to 
 come to a settlement of their accounts, and pay what upon balancing the accounts 
 should appear to be due: — JJfld, that this statement of the bill is such an admis- 
 sion of the previous accounts of the defendants as will prevent tlie operation of 
 the statute of limitations; and being made by his agent is obligatorj^ on the 
 estate of the intestate. [*93] 
 
 Before answer filed, it was agreed between the parties that neither should plead 
 the statute of limitations to the demands of the other, and the defendants did not 
 in their answer, or on the reference, urge that plea; the plaintiff will not after- 
 wards be permitted to plead the statute. [*93] 
 
 Generally an executor or administrator may or maj' not plead the statute of limita- 
 tions: the only exception is when the demand is in whole or in part due to 
 himself, in which case the legatees or distributees have been permitted to plead 
 it when be had not: but when the administrator is the sole distributee, his 
 agreement not to plead the statute has every possible legal and equitable sanction. 
 [*94] 
 
 Sumter. — February, 1834. 
 
 The bill stated that the defendants, J. B. & C. Morse, were indebted 
 to the plaintiif' s intestate, General Sumter, for house rent, negro hire, 
 moneys paid by him as their security, for goods delivered from his store, 
 and supplies from his plantation ; which debts were contracted at different 
 times, from 1817 until 1830. These demands are detailed at length in 
 the bill. That the plaintiff, as the agent of General Sumter, in his life- 
 time, frequently applied to the said J. B. and C. Morse, and desired them 
 to come to a settlement of their accounts with General Sumter, and to 
 pay what, upon the balance of their accounts, should appear to be due ; 
 *which they neglected and refused to do. That through the assist- |--,.^o 
 ance thus afforded by General Sumter, they purchased considerable •- 
 real and personal property, which, with the view of defrauding their 
 creditors, they caused to be conveyed to the defendant, A. T. Morse, who 
 holds the same for their use and benefit, they being insolvent. The bill 
 prays that this property, and certain other property in the possession of 
 Cyrus Morse, may be decreed liable for their debts ; and as defendants 
 are about to remove, for a ne exeat and general relief. 
 
 The defendants in their answers deny fraud in the conveyance of the 
 property to A. T. Morse, or any intention on their part to evade the 
 payment of just debts. J. B. and C. Morse insist that they have claims 
 against General Sumter, and that on a fair and full settlement, it will be 
 found that they are not only not indebted to him, but that he is indebted 
 to them. 
 
 The cause was referred to the Commissioner to make up the accounts, 
 who reported, that on stating tlie accounts, tlicre appeared a l)alance of 
 fifty-eight dollars and twenty-three cents, in favor of J. B. and C. Morse. 
 
 The report states that the plaintiff claimed to have admitted by the
 
 74 SOUTH CAROLINA EQUITY REPORTS. [*88 
 
 defendants, J. B. and C. Morse, certain items of charges for money and 
 other things made in the hand-writing of General Sumter against them, 
 which they objected to as not being evidence of the demands therein 
 stated, which objection the Commissioner sustained. It further states, 
 that since the day of reference the plaintiff insisted upon the statute of 
 limitations against the demands of J. B. and C. Morse, but that the 
 defendants objected thereto, upon the ground that there had been an 
 understanding between the plaintiff and the defendants that the statute 
 should not be pleaded ; which objection the Commissioner sustained, and 
 refused to allow to the plaintiff the benefit of the statute. 
 
 The plaintiff excepted to the report of the Commissioner on the 
 ground : — 
 
 That the Commissioner refused to allow the plea of the statute of 
 limitations on the part of the plaintiff, upon an alleged agreement that 
 plaintiff would not plead the statute; the evidence of which agreement 
 he has not been allowed time to contradict, except by his own affidavit, 
 which, after understanding that testimony of such agreement had been 
 given by defendants' counsel, he tendered to the Commissioner, who 
 rejected it. 
 
 QQ*1 ^Chancellor DeSaussure. It appears by the statement of the 
 -J defendants' counsel, that he called upon the plaintiff before the an- 
 swers were filed, and inquired if he intended to use the statute against 
 the demands of the defendants; and stated that if he did not mean to 
 rely upon the statute, the defendants would also waive it. — That the 
 plaintiff assented to this course, and the statute, in consequence, was not 
 insisted upon by the answers. 
 
 Unquestionably if the defendants have been induced to waive the statute 
 in consequence of this understanding, the Court will not permit them to 
 be prejudiced by it, and inasmuch as the plaintiff now urges that plea 
 against tlie defendants' demands, it will be considered as pleaded by them 
 against the demands of the plaintiff. Indeed it appears by the affidavit 
 of Mr. Potts, the plaintiff's counsel, that after the first reference, but 
 before the final reference of the accounts between J. B. and C. Morse 
 and the plaintiff, and before any report made thereon, he expressly insisted 
 in writing upon the plea of the statute, on behalf of the plaintiff, and at 
 the same time gave notice that the defendants were at liberty to urge it 
 on their side if they thought proper to do so. The counsel for the plain- 
 tiff, alleged in argument, that the plaintiff consented to this arrangement 
 upon the supposition that, as the books of account kept by the defendants 
 were to be evidence, so, on the other hand, the accounts kept by his 
 intestate. Gen. Sumter, in his own handwriting, would be received as 
 evidence against the defendants ; and that he only insisted upon the 
 statutory protection, when these memoranda of his intestate were objected 
 to by the defendants, and rejected by the Commissioner. Independent then 
 of the objection that an administrator cannot by his promise revive a debt 
 barred by the statute of limitations in the lifetime of the intestate, I think 
 the plaintiff ought not to have been deprived of the protection of the 
 statute. But it is objected on the part of the defendants, that the 
 statute cannot be pleaded in this case : first, because both parties were 
 merchants ; and secondly, because there were mutual unsettled demands 
 between the parties, an account current with items on both sides running
 
 *89] COLUMBIA, JUNE, 1834. 75 
 
 through the whole period of the respective demands ; and this is the 
 important question in the case. 
 
 It is true, that both the intestate and the defendants, J. C. and C. 
 Morse, owned stores, and each had a store account against the other. 
 But it appears that the store account of General Sumter against the 
 defendants, commenced on the Kith October, 1817, and terminated r^oa 
 in March, 1818 ; while the store accounts of the defendants against '- 
 him commenced on the 4th June, 1817, and terminated on the 27th 
 December, 1821. The exception in the Statute of Limitations is in the 
 following words : " Other than such accounts as concern the trade of 
 merchandize between merchant and merchant," &c. The plaintiff's 
 intestate died on the 1st June, 1832, and this bill was filed on the 9th of 
 January 1833 ; and the answer of the defendants, setting up these claims, 
 on the 21st of January, 1838. Thus, more than ten years had elapsed 
 between the date of the last item in the accounts and the institution of 
 this suit. The question, whether the statute will operate as a bar where 
 the account is between merchants and concerning merchandize but more 
 than four years have elapsed since the last item, has been much discussed, 
 and the decisions are contradictory, but the better opinion seems to be, 
 that the statute may be pleaded. In Coster v. Murray, 5 Johnson's Ch. 
 Rep. 522, Chancellor Kent reviews the cases and comes to that con- 
 clusion. And in the case of Yan Rhyne v. Yincent, 1 M'Cord's Ch. 31G, 
 Judge Nott, after referring to the authorities, says, " I do not at present 
 see any good reason why merchants and factors, after all dealings between 
 them had ceased, should not be as well entitled to the protection of the 
 statute as other persons" He observes, however, that lie does not mean 
 to give an opinion upon the point because the case did not require it. I 
 have come to the conclusion, that the object of the statute was to prevent 
 dividing of the account where it was between merchants ; and if there are 
 any items within the period of limitation, these will save the whole account. 
 Here there are no such items, and the statute is a bar : Nor will it help 
 the defendants, that there were subsequent dealings between them and tlie 
 plaintiff's intestate ; there were clearly no such dealings between them as 
 merchants, and the subsequent transactions are, moreover, none of them 
 within four years before this suit, as will be shown hereafter. 
 
 But it was argued, that although the parties be not merchants, nor the 
 account concern merchandize, yet the statute does not apply where there 
 have been mutual unsettled current accounts between the parties ; and 
 such is the law, provided there be some item within the period of limita- 
 tion. Fitch V. Hillary, 1 Hill's Rep. 292. Is there any such item in 
 this case ? The latest dealing between the parties was in 1824, when the 
 intestate indorsed *a note to be discounted in the Bank of the p,i..gj 
 State, for the accommodation of J. B. and C. Morse, More than four L 
 years elapsed between that transaction and the filing of the bill, and the 
 objection thus urged by the defendants against the operation of the statute 
 cannot prevail. But it is urged by the defendants, that tlie filing of the 
 bill seeking an account and admitting that there are unsettled demands 
 between the parties, shuts out the plaintiffs from the benefit of the statute. 
 Upon examining the bill, I do not feel the force of this argument; liut 
 give the defendants the benefit of it as a general jn-inciple, iiow can it 
 operate in this cause ? The plaintiff is an administrator — the defendants'
 
 76 SOUTH CAROLINA EQUITY REPORTS. [*91 
 
 demands were barred in the lifetime of the intestate. Can he revive these 
 demands i;igainst the estate by any acknowledgment on his part ? I 
 consider it as settled law that he cannot. — Executors of Fisher v. Exec- 
 utors of Tucker, 1 M'Cord's Ch. 175. 
 
 It is argued for the defendants that plaintiff's demand for the bank 
 debt, reported by the Commissioner as now amounting to two thousand 
 one hundred and forty-one dollars and sixty-three cents, is barred by the 
 Statute of Limitations — that the plaintiff has alleged in his bill that he 
 paid the debt to the bank, and that the statute therefore began to run 
 from the period of such payment. The statement in the bill is, that in 
 1824 the intestate indorsed a note in bank for the accommodation of J. B. 
 and C. Morse, whom the bank sued, and the intestate being also threat- 
 ened with suit, paid the bank and took an assignment of the suit, which 
 he prosecttted to judgment in the name of the President and Directors. 
 The plaintiff now relies on that judgment, but the defendants allege that 
 the debt was paid when the judgment was obtained. The defendants 
 then mean to ask this Court to set aside that judgment — upon what 
 equity ? That the debt had been already paid. By whom had it been 
 paid ? By the party now setting up the judgment. The suit was 
 assigned to the intestate, who paid, for the privilege of carrying it on, the 
 amount of the note ; and this was the proper mode of protecting himself. 
 This is, therefore, a judgment debt, and is not subject to the operation 
 of the Statute of Limitations. 
 
 The decretal order directs the case to be referred back to the Commis- 
 sioner, with leave to both parties to plead the Statute of Limitations ; 
 from this decree the defendants appealed, and move for a reversal thereof, 
 on the ground that the chancellor erred in his decision on the Statute of 
 Limitations. 
 
 *Qoi ^Blandinq, for the appellant cited 6 T. R. 192; Fitch v. Hillary, 
 ^"-1 1 Hill, 292; 1 M'C. Ch. 175. 
 
 De Saussu7'e, contra, cited 5 John. Ch. Rep. 522 ; Ang. on Lim. 
 207, chap. 10, 197; 1 M'C. Ch. 310; 5 Cranch. 15. 
 
 O'Neall, J. I agree with the defendants, that the Statute of Limi- 
 tations cannot avail the plaintiffs upon two grounds, to wit : first, the 
 statement in the Ijill of a running account on the part of General Sumter 
 against the defendants J. B. and C. Morse, from 1817 to 1830, and the 
 allegation in the bill having reference to this account, and the counter 
 account of the said defendants, " that the plaintiff, as the agent of Gen- 
 eral Sumter, in his lifetime, frequently applied to the said J. B. and C. 
 Morse, and desired them to come to a settlement of their accounts with 
 the said General Sumter, and to pay what upon the balance of their 
 accounts should appear to be due :" Secondly, the agreement between 
 the plaintiff and the counsel of the said J. B. and C. Morse, that neither 
 of the said parties should plead the Statute of Limitations, and the actual 
 execution of this agreement by the plaintiff, is not pleading the Statute 
 of Limitations until the account had been taken of all the charges on the 
 part of the defendants against General Sumter. 
 
 First. It is well settled that if there be mutual running accounts 
 between parties, and any of the items have accrued within the time of
 
 *92] COLUMBIA, JUNE, 1834. 77 
 
 the statute, this amounts to an acknowledgment of the previous account 
 and a promise to pay. Fitch v. Hillary, 1 Hill, 292. I am disposed, 
 however to think, that the reason the statute does not run, in such a case 
 is because the plaintifi's cause of action does not accrue to him until the 
 mutual dealing has ceased. It is only at and after the last item, that a 
 balance can be struck ; until then it is uncertain who may have the right 
 to sue. I am not speaking now in reference to the exception, in the 
 Statute of Limitations, of accounts which "concern the trade of merchan- 
 dize between merchant and merchant, their factors and servants," and as 
 to which it will be unnecessary to give any opinion in this case, but of 
 mutual running accounts existing between the plaintiff and defendants, of 
 any character or kind. 
 
 From the statement of the accounts in this case, made by the Commis- 
 sioner, it appears that from 1817 to the close of 1821, there were mutual 
 running accounts between General Sumter and *J. B. and C. r^oq 
 Morse. The statute would (if this was all to prevent) run from L 
 the 1st of January, 1822, and thus entirely exclude this account. But 
 it appears from the bill that the plaintiff's claims extended down to 1830 ; 
 and that, in reference to them, as the agent of General Sumter, he 
 frequently called on the defendants J. B. and C. Morse, and requested 
 them to come to a settlement of their accounts with the said General 
 Sumter and pay what upon the balance of their accounts should appear 
 to 1)e due. This statement on the part of the plaintiff is an admission 
 by General Sumter of the accounts of the defendants as a previous and 
 subsisting debt, which he is willing and liable to pay. For it is in sub- 
 stance saying "here are my accounts extending to 1830, produce yours, 
 deduct the amount and pay the balance." After such an acknowledg- 
 ment made, as we must presume in 1830, for the plaintiff's account 
 against one of the defendants then ceases, it would be strange indeed if 
 the plaintiff could set up the Statute of Limitations, which his intestate 
 had thus waived. I speak of the acknowledgment, as made by General 
 Sumter himself; for although it was made by the plaintiff, yet it was 
 made by him as the agent of General Sumter, and by his authority, and 
 is his acknowledgment, upon the plain legal maxim, "qui facit per 
 alium, facit per se." 
 
 Second. That the plaintiff could not, in this case, plead the Statute of 
 Limitations, after his agreement not to plead it, and his actual execution 
 of it, by not attempting to plead it, until the defendant's accounts 
 had been proved, is, I think, perfectly demonstrable. It is true, that the 
 defendant's agreement not to plead "the statute, would not, as an execu- 
 tory contract, bind him ; but in pursuance and in execution of it, he did 
 not plead it ; and the question now is not, was he bound by his contract 
 not 10 plead the statute ; but, can he have leave to plead it after he has 
 in pursuance of his agreement declined at the proper time to plead it. 
 
 An executor or administrator generally may or may not plead the 
 Statute of Limitations. This privilege is conceded to him as well on ac- 
 count of his legal identity with his testator or intestate, as also on 
 account of his supposed knowledge of the legal liability of his testator or 
 intestate to pay the del)t claimed. The only exception to this rule, 
 which has been recognized in this Slate, is when the debt or demand is
 
 78 SOUTH CAROLINA EQUITY REPORTS. [*93 
 
 *QiT ^"® ^" whole or in part to the executor or administratorn. In such a 
 -• case the legatees or distributees *have been permitted to plead the 
 Statute of Limitations, notwithstanding the executor and administrator 
 declined to plead it. In the case before us, the plaintiif is not only the 
 administrator, but also the only distributee, and under such circumstances, 
 his act must have the sanction of every possible legal or equitable interest 
 to sustain it. 
 
 He did, in pursuance and in execution of his agreement, decline to 
 plead the Statute of Limitations. For, to the accounts set up by him, 
 the defendants did not by their answer, or on the reference, plead the 
 Statute of Limitations; this was a performance on their part, of that 
 part of Colonel Blanding's agreement which they were to perform. 
 They could not after this have pleaded it. On the part of the plaintiff, 
 no written replication to the defendant's answer is required. His 
 objections to the accounts set up by the defendants lay altogether in 
 parol, and ought to have been urged, either before the order of reference 
 was made, so as to have excluded from the account which it directed all 
 the defendants' accounts ; or, at least at the time when the accounts were 
 presented to the Commissioner, and were about to be proved. If the 
 plaintiff had intended to rely on the Statute of Limitations, he should at 
 one or the other of these times have urged it. Not having done so, he 
 must be taken in good faith, to have declined to plead it, and be placed 
 in the same situation of the defendants, who after their agreement and 
 answer could not have pleaded it. Would the Court under these cir- 
 cumstances give to either or both of these parties on the application of 
 one of them leave to plead the Statute of Limitations ? Where a party 
 has failed to plead the statute at the proper time, the Court is slow to 
 give him that leave ; but after a case is on trial, and the proof is heard 
 on one side, it is then too late to ask leave to file the plea. That was 
 exactly the case here : the Commissioner had heard the defendant's 
 proofs ; they had legally established their demand, which the plaintiff's 
 silence as to the Statute of Limitations admitted to be subsisting, and 
 that he was willing and liable to pay. After this, the Commissioner was 
 right in refusing to allow hira the benefit of the Statute of Limitations ; 
 and the Chancellor erred in allowing to both parties, on the application 
 of the plaintiff alone, the liberty to plead it. 
 
 Decree modified. 
 
 Johnson, J., and Harper, J., concurred. 
 
 *95] *Henry Parker v. Lewis Holmes & John Spann. 
 
 When actual fraud in a judgment or conveyance is clearly proved, it is wholly void 
 and will not be permitted to stand as a security for what is actually due; but 
 ■when Equity infers fraud from the circumstances and relation and character of the 
 parties, it is at the discretion of the Court, to allow the security to stand good for 
 what is really due. [*95] 
 
 Edgefield. — Before Chancellor De Saussure, June, 1833. 
 
 The plaintiff, as a judgment creditor of John Spann, filed this bill to
 
 *95] COLUMBIA, JUNE, 1834. 79 
 
 set aside a judgment the defendant Tf olraes had against Spann, charging 
 the same to be fraudulent, and praying that certain moneys, which Holmes 
 had received on it of sales by the sheriff, may be decreed to him. Spaun 
 has left the State. The answer of Holmes denies fraud in the judgment, 
 and aifirms that the consideration was for services rendered by liim in 
 attending on behalf of Spann to an important suit in Equity, and for 
 moneys advanced to him. 
 
 Evidence was given on both sides, for and against the fairness of the 
 transaction, which need not be detailed. The Chancellor's decree declares 
 that the transaction between Holmes and Spann was contrived and 
 intended as a cover of Spann's property against his creditors, which is 
 fraudulent ; or that it was an imposition by Holmes on the weakness and 
 credulity of Spann, an habitual drunkard and exposed to the acts and 
 extortions of designing men, and cannot at any rate be allowed to affect 
 creditors : That Holmes is entitled to credit for the actual advances of 
 money by him, and the true value of the services rendered ; and to ascer- 
 tain these a reference was ordered. 
 
 Both parties appealed ; but as the defendant's grounds depend wholly 
 on the facts, they need not be stated. 
 
 G7"iffin, for the plaintiff, now moved the Court to reverse so much of 
 the decree as allows the defendant for advances made, or services rendered, 
 on the ground — that the transaction being fraudulent, he should derive 
 no benefit from it ; and cited Miller v. Tolleson, Harp. Eq. Rep. 145 ; 
 1 Jac. & Walk. 119. 
 
 Wardlaw, contra, cited 2 Sch. & Lef. 501; 1 John. Ch. Rep. 478; 
 8 Ves, 282. 
 
 Harper, J. [After noticing the facts and concurring with the Chan- 
 cellor in his conclusions thereon.] Nor can we, in relation to the plain- 
 tiff's ground of appeal, say that the Chancellor has erred *in decree- r;iccy' 
 ing the judgment to stand as a security for what shall be found ^ 
 actually due to Holmes. When actual fraud (dolus malus) is clearly 
 proved, the judgment or conveyance is wholly void, and will not be per- 
 mitted to stand as a security for what is actually due. Miller v. Tolleson, 
 State Rep. Eq. 145. But where equity infers fraud from the circum- 
 stances and relation and character of the parties, it is at the discretion of 
 the Court to allow the security to stand good for what is actually due. 
 1 John. Ch. Rep. 478. 
 
 Decree affirmed, (a) 
 
 Johnson and O'Neall, Js., concurred. 
 
 (a) See Smith v. Loader, Prec. in Ch. 80; Abingdon v. Butler, 1 Ves. jr. 206 
 Townsend v. Lowfield. 1 Ves. sen. 35; Heme v. Meeres, 1 Vern. 465.
 
 CASES IN CHANCERY 
 
 ARGUED AND DETERMINED IN THE 
 
 COUPJ OF APPEALS OP SOUTH CAROLIM 
 
 Columbia — ^mmhtx, 1834, mxh |anuarg, 1835. 
 
 JUDGES PRESENT. 
 
 Hon. DAYID JOHNSON, Presiding Judge. 
 Hon. J. B. O'NEALL. I Hon. WILLIAM HARPER. 
 
 John Peay, Administrator of Samuel M'Creary, v. Joseph Fleming 
 and others, Creditors of Samuel M'Creary. 
 
 If an administrator, on a sale of his intestate's property, tal^e any other security 
 than that required by the terms of the order for sale, he becomes personally 
 responsible, and if loss ensue it must fall on him. [*98] 
 
 A levy is prima facie evidence of satisfaction: — but this presumption maybe re- 
 butted by showing that satisfaction in fact, has not and could not have resulted 
 from the levy by reason of senior executions which would have covered a larger 
 amount than the value of the levy, (a) [*99] 
 
 Chester. — Before Chancellor De Saussure, July, 1834. 
 
 Bill to marshal assets. The bill was filed to compel the creditors of 
 the intestate to come in and establish their demands, and receive their 
 respective proportions of the assets. Under an order of the Court, the 
 plaintiif was required to account for his administration, and the Commis- 
 sioner, in stating the account, deducted from the amount of the sale bill 
 seventy dollars, the price of a horse sold to one M'Sherry, which had not 
 been collected. The Commissioner, also under the order of the Court, 
 made a report on the execution of Eli T. Hoyt, one of the creditors of 
 the intestate, recommending that it should be paid out of the funds in 
 hand. 
 
 -^Qo-| *That part of the report disallowing the charge against the 
 -■ administrator for the price of the horse, was excepted to by the 
 creditors generally, and the exception was sustained by the Chancellor. 
 And the other creditors excepted to so much of the report as recom- 
 mends Hoyt's execution to be paid ; but this exception the Chancellor 
 overruled, 
 
 (a) See Davis v. Barkley, 1 Bailey, 140; Mazyck and Bell v. Coil, 2 Bailey, 101.
 
 *98] COLUMBIA, DECEMBER, 1834. 81 
 
 Both parties appealed. The facts connected with both questions are 
 stated in the following opinion of this Court. 
 
 Clarke and 3PDoiveU, for the plaintiffs. 
 
 Williams, for the creditors. 
 
 O'Neall, J. The first part of this case relates to the appeal on the 
 part of the plaintiff. He contends that he is not liable for the price of a 
 horse sold by him, as administrator, to a man of the name of M'Slierry. 
 The facts appear to be, that at the sale of his intestate's estate, the plain- 
 tiff sold the horse for seventy dollars on the usual term of note and secu- 
 rity : the pui'chaser, without complying, took off the horse without the 
 plaintiff's knowledge; he pursued M'Sherry, and took from him a note 
 on one Eccles, who was then, and for a year afterwards, solvent : the note 
 was for more than the price of the horse, and the plaintiff paid M'Sherry 
 the difference. 
 
 From this statement, it is apparent that the note of Eccles would not 
 be regarded as the assets of the estate ; it was received in satisfaction, it 
 is true, of the price of the horse, but the receipt of it was the act of the 
 administrator outside of his duty as such. If loss has ensued, it must fall 
 on him. For he, and not his intestate's estate, must be regarded as the 
 owner of Eccles' note. It was his duty, as administrator, to see that the 
 terms of the sale were complied with, by note and security being given for 
 the property, or to resell it. If he chose to take anything else in satis- 
 faction of the purchase, he made it his own, and became answerable to 
 the estate — if the parties in interest elected so to consider it, and so to 
 deal ivith him. But the fact that he paid more for the note than the price 
 at which the horse was sold, shows that the acquisition of the note was 
 his own speculation. We concur, therefore, with the Chancellor, in sus- 
 taining the exception to the Commissioner's report in this respect. 
 
 The second part of the case relates to Hoyt's execution. It appears 
 that in the time of M'Creary it had been levied by Mr. Sheriff 
 *Kennedy of Chester, on a slave, who, if he had been sold, would 
 have sold for a sum greater than that due on the execution ; but he was 
 left by the sheriff with M'Creary, on his giving bond to Mr. Kennedy, as 
 an individual, to deliver the said slave for sale. The slave was carried 
 out of the State by M'Creary, or by his consent. Six years after the levy 
 he was brought back and delivered to Mr. Kennedy, who entered a receipt 
 upon the bond for him as delivered by the security : he was not sold, but 
 permitted by Mr. Kennedy, who had been out of office for some time, to 
 return to his owner out of the State. At the time of the levy, and for 
 several years aftei', and indeed until paid in this case, there were execu- 
 tions against M'Creary, in the sheriff's office of Ciiester District, senior 
 to that of Hoyt's, to an amount much beyond the value of the slave. 
 
 A levy is, in legal contemplatiou, satisfaction of aji. fa., that is, it is 
 presumptive evidence that satisfaction may result or has resulted from it. 
 But as soon as it is shown how the levy has been disposed of, and that 
 satisfaction has not and could not have resulted from the levy, the legal 
 presumption is rebutted, and the execution may be again levied, if»it has 
 not lost its active energy : and if it has. the judgment may be revived by 
 sci.fa., or sued upon in debt. 
 
 [*99
 
 "82 SOUTH CAROLINA EQUITY REPORTS. [*99 
 
 In this case, the plaintiff in execution, Hoyt, never could have obtained 
 satisfaction from the levy ; for, if the slave had been sold, the elder exe- 
 cutions must have been first satisfied before he could have received any- 
 thing. They would have taken up a larger sum than the value of the 
 slave. If he had sued the sheriff for not selling the negro, he would have 
 been answered as the Court answered the plaintiff in the case of Gaines 
 V. Downs, State Rep. T2, that " he (the sheriff) was only liable to them 
 who were injured by his neglect." The senior execution creditors were 
 the persons in this case, as in that, who had the right to complain. We 
 are therefore satisfied with the Chancellor's decree in this respect. 
 
 It is ordered and decreed, that the Chancellor's decrees, upon these 
 two parts of the same case, be affirmed. 
 
 Harper and Johnson, Js., concurred. 
 
 *1001 *C!HAiiLOTTE H. Heath v. Juriah Heath, Executrix, W. G. 
 -' Hunt and wife, and others. 
 
 Contribution, by legatees to a child born after the execution of the will and before 
 the testator's death, decreed. [*10l] 
 
 When the husband goes into the Court of Equity to obtain possession of his ■wife's 
 choses in action, a suitable provision will be made for her and her children. 
 [*104] 
 
 Executrix being in the receipt of the annual profits of an estate which the will 
 directs shall be paid over to the legatees on their coming of age or marriage 
 instead of paving it according to the will, she loaned out the whole amount from 
 time to time to the legatees, and among the rest to the husband of one of them: 
 on the parties being brought into this Court, and the wife insisting on a settle- 
 ment: — Held, that if the money advanced by the executrix to the husband waa 
 intended as a payment of his wife's share, the executrix will be allowed credit; 
 otherwise, if as a mere loan. Reference ordered on this point. [*105] 
 
 The wife's interest in the shares of two deceased children, which could not have 
 been reduced into possession by the husband at the time the executrix advanced 
 to him, is not subject to the payment of such advances. The fact that the husband 
 was not entitled to possession until the termination of a life estate, precludes the 
 possibility that a payment of his wife's interest therein was intended. [*1U5] 
 
 Orangeburg. — 
 
 The bill stated that Frederick Heath, the plaintiff's father, executed 
 his last will and testament the 16th February, 1807, and died in 1816, 
 between which periods the plaintiff was born, and therefore no provision 
 was made for her by the will. After giving three negroes to each of his 
 children (except plaintiff) when they attained to twenty-one years, or 
 married, and leaving the balance of his estate to his wife, Juriah Heath, 
 during her natural life, the testator willed and directed as follows : — " la 
 case of the death of any of the aforesaid my children without lawful issue, 
 I desire that such portions allotted now to them may be taken and con- 
 sidered as part of the residue of my estate, and divided as hereinafter 
 directed. After the decease of my dearly beloved wife, Juriah Heath, 
 my will and desire is, that the residue of my estate shall be equally divided 
 amongst my children hereinbefore named, to them or the survivor or sur- 
 vivors of them. And as it is my desire that an increasing fund should
 
 *100J COLUMBIA, DECEMBER, 183-i. 83 
 
 arise for the benefit of mj children, I direct my executrix and executors, 
 hereafter mentioned, to iiave my pUxnting interest carried on, and that 
 the moneys arising from the crops, after deducting what may be deemed 
 necessary house and plantation expenses yearly, that the overplus may be 
 put out to lawful interest, and that such of ray children as may want 
 education, I desire that they may be put to school and educated as amply 
 as those of my children in my life-time ; that the expenses thereof to be 
 paid out of the interest arising from such money so put out to interest : 
 And when the children come of lawful age, or marry, ray desire is that 
 each may draw an equal portion of said money, to be laid out for them 
 for such purposes, the most advantageous, as my said executrix and exe- 
 cutor deem the most proper and expedient for their interest." Benjamin 
 Hart and Juriah Heath were appointed executor and executrix, the latter 
 of whom alone assumed the execution of the trust. After testator's death 
 Wade and Mary, two of his children, died under age and unmarried, and 
 their interests under the will continued in the possession of the executrix, 
 as tenant for life. The testator's other children *have either mar- r*ini 
 ried. or are of lawful age. The object of the bill was to compel ^ 
 the other children to contribute to make up a share for the plaintiff, 
 according to their respective interests under the will ; and that plaintiif 's 
 interest in the surplus arising from the crops may be ascertained and paid 
 to her, and also that her right to the balance of testator's estate, in the 
 possession of the executrix for life, might be declared. Juriah Heath, 
 the executrix, admitted by her answer that the testator made a will of the 
 tenor and effect set forth in the bill, and that plaintiff was born after the 
 execution of the will, and before testator's death, and is unprovided for 
 by it. She says that a considerable sum has been raised from the annual 
 crops, besides what was necessary for plantation expenses, and that she 
 has loaned to each child (except plaintifi") a considerable sum, and took 
 their notes for the same, believing this the most advisable step until a 
 final distribution of the fund could be made, and that she is ready to 
 account. She also admits that Mary and Wade, two of the children, are 
 dead, and that their shares are in her hands as tenant for life, but that 
 she will, under the authority and sanction of the Court, deliver them to 
 her children for division. 
 
 William G. Hunt and wife, by their answer, admitted that plaintiff was 
 born after the execution of the will, and unprovided for by it, and that 
 Mrs. Hunt received four negroes and some other personal property from 
 the testator in his lifetime ; but that they never received any part of his 
 estate since his death. William Gr. Hunt stated that he had borrowed 
 from the executrix, out of (as he understood) the funds of the estate, 
 about §1500, but these defendants submitted that they could not be called 
 upon to contribute to the plaintiff, until a full account of the executrix's 
 administration be taken. 
 
 The other defendants, John Kaigler and wife, and Frederick and 
 Francis Heath, filed no answer, and the bill was taken f>ro confesso 
 against them. 
 
 The Coramissioner made a i-eport to January Term, 1831, stating the 
 amount received by each legateee, and the amount in the hands of the 
 executrix, and that she had loaned to her children about $7,988. At 
 the hearing, Chancellor De Saussure decreed, that an average should be
 
 84 SOUTH CAROLINA EQUITY REPORTS. [*101 
 
 made of the whole estate devised and beqneatlied to the other children, 
 and the plaintiff's share paid to her ; and the executrix having relin- 
 *in9l Q*^!^^'^*^*^^ ^^^^ interest for life to *the estate of the two deceased 
 "'-' children, lie ordered their shares to be divided among the surviving 
 children. The Chancellor also decreed that the surplus fund laid out on 
 interest should be divided equally among the surviving children, and that 
 the estate not specifically bequeathed, and not forming part of the surplus 
 from the annual crops, should, on the death of the tenant for life, be 
 divided among the testator's children, including the plaintiff. In obedi- 
 ence to the decree, the Commissioner, at January Term, 1832, made his 
 report, fixing the share which each legatee should ratably contribute to 
 the plaintiff, and also ascertaining the amount due by the executrix, 
 including the sales of some personal estate, cash on hand at the testator's 
 death, and the surplus arising from the cnnual crops, which the Com- 
 missioner reported to be $9,2G9 57, — or each child's share $1,813 91. 
 
 The defendants. Hunt and wife, excepted to that part of the report 
 which fixes the share to be contributed by each legatee, and Chancellor 
 Johnston referred the case back to the Commissioner, and established 
 principles to govern him in calculating the value of the property, received 
 by the legatees under the will ; and he also ordered that a writ of parti- 
 tion should, on application, be issued to divide the shares of the deceased 
 children. 
 
 At January Term, 1834, the Commissioner, conformably to Chancellor 
 Johnston's directions, reported the amount which each legatee should 
 contribute, and ascertained the amount due by William Gr. Hunt and 
 wife to be $150, with interest from the 25th March, 1829. It also ap- 
 peared that the testator, in 1816, left forty-two negroes, which, in Janu- 
 ary, 1832, had increased to seventy-five ; that the amount of money 
 loaned to William G. Hunt by the executrix, on his individual responsi- 
 bility, with interest to the 10th January, 1832, exceeded the amount 
 which the executrix was indebted to him upwards of $1000. It was proved 
 that the executrix besides raising thirty-three negroes, had realized from 
 the plantation upwards of $10,000 in sixteen years, and it was admitted 
 that William Gr. Hunt is insolvent. No exceptions were taken to this 
 amended report. 
 
 Mr. Glover, on the part of the executrix, moved for confirmation of the 
 report, and at the same time for an order subjecting the interest of 
 William G. Hunt and wife, in the negroes of the two deceased children, 
 to the payment of the amount due by Hunt and wife to the plaintiff ; and 
 also for the balance due by the same to the executrix, Juriah Heath, for 
 5^-|„o-| money loaned. And that Mrs. Hunt's interest in her father's 
 -' estate (subject to these payments) be settled on her and her issue. 
 
 The motion was opposed by Mr. Chappell : 1. As regards the lien to 
 the plaintiff. 2. As concerns the lien for Hunt's debts. 3. As respects 
 the form of the settlement, which, under the circumstances, he insisted 
 should be referred to the Commissioner. 
 
 Chancellor Johnston made the following order in lieu of that moved : 
 
 "It is ordered, that the amended report of the Commissioner (dated 
 the 10th inst. ) be confirmed. It it further ordered, that when the negroes, 
 of which Wade and Mary died possessed, shall be divided, the share that 
 may be allotted to William G. Hunt, and Elizabeth his wife, shall be
 
 *103] COLUMBIA, DECEMBER, 1834. 85 
 
 subject to the payment of $450, with interest agreeably to said report, 
 which the said William G. Hunt and wife are required by the Oonimis- 
 sioner's report to contribute to Charles H. Heath. And the Commis- 
 sioner is hereby directed to report the trusts deemed by him most proper 
 for a settlement of Mrs. Hunt's share." 
 
 The executrix, Mrs. Heath, appealed, and now moved this Court to 
 enlarge the order so as to subject the interest of Mrs. Hunt to the pay- 
 ment of the amount due to her, as executrix, by William G. Hunt. 
 
 Glover, for the appellant. 
 
 ChappeU, contra. 
 
 O'Neall, J. The questions to be decided, arise between the co-de- 
 fendants, Mr. Heath, and Hunt and wife. To a clear perception and a 
 just decision of them, a summary of the facts may be useful. Mrs. Heath 
 and Mrs. Hunt are the widow and one of the children of Frederick 
 Heath, who, among other things, by his will, directed the annual profits 
 of his estate to be put to interest as a fund for the education of his 
 children ; and the will directs, "when the children come of lawful age or 
 marry, my will and desire is, that each may draw an equal portion of said 
 money, to be laid out for them for such purposes the most advantageous, 
 as my said executrix and executor deem the most proper and expedient 
 for their use." The executrix, Jnriah Heath, managed the estate with 
 great prudence, and realized large annual profits. Instead, however, of 
 paying it out to the children as they came of age, or *married, r^ini 
 she loaned out the whole sum amongst them, and the defendant, *- 
 William G. Hunt, borrowed a part of it, which with the interest now 
 amounts, it is said, to near $3000, greatly exceeding Mrs. Hunt's share 
 of this fund. 
 
 Since the death of the testator, two of his children and devisees. Wade 
 and Mary, have died without issue : in such an event, the testator's will 
 directs that their parts of his estate should fall into the residuum, which 
 is bequeathed to his widow and executrix, Jnriah, for life, and at her 
 death to be equally divided among his surviving children. In this case 
 Mrs. Heath has surrendered her life estate in the parts of the said Wade 
 and Mary, which are now therefore divisible among the testator's 
 children. 
 
 It is contended on the part of Mrs. Heath, that she is entitled to de- 
 duct and retain Mrs. Hunt's share of the annual profits of the estate, out 
 of Mr. Hunt's debt to her for money loaned out of the said fund ; and 
 that, for the balance of his debt, she is entitled to a lien on Mrs. Hunt's 
 share of the parts of Wade and Mary, now divisible. Mrs. Hunt 
 opposes these claims, and sets up her equity to have a suitable provision 
 made for her and her children, out of this her estate. Her husband, 
 William G. Hunt, it seems, is entirely insolvent. 
 
 The case will be considered, first, as to Mrs. Hunt's share of the annual 
 profits of the estate ; and second, as to her share of Wade and Mary's 
 parts. Before, however, taking up the separate consideration of each of 
 these parts of the case, it will be well to state some general principles 
 alike applicable to both. 
 Vol. I.— 29
 
 86 SOUTH CAROLINA EQUITY REPORTS. [*104 
 
 There is no doubt, when the wife has a perfect legal estate in goods 
 and chattels, whether it be in severalty, joint tenancy, in common or in 
 coparcenery, it will vest in the husband jure mariti; but if her interest 
 be a mere chose in action at law, or a mere equity, as where money and 
 other property is in the hands of an executor or a trustee for the use of 
 a feme covert, the husband has no legal right until he reduces them into 
 possession. If he can do this without the aid of a Court of Equity, he 
 will hold them discharged of the rights of his wife ; but, if by the decree 
 of the Court of Equity, he is to obtain possession, the wife's equity to 
 have a suitable provision made for her and her children, will be sup- 
 ported and enforced. 
 
 First. The question as to the application of Mrs. Hunt's share of the 
 ^,^r-i annual profits of the estate to the extinguishment of the *debt for 
 -' money loaned to Hunt by Mrs. Heath, will depend upon the fact, 
 whether, when she advanced the money to Hunt, she intended it as a 
 payment. For there can be no doubt that Mrs. Hunt, who is understood 
 to have been of full age before her marriage with Mr. Hunt, could at any 
 time have claimed the payment of her share before her marriage; and 
 after that event she and her husband were entitled to receive it at any 
 time when they thought proper to demand it. If the husband alone had 
 received it, it would have been such a reduction into possession as would 
 have barred her equity. This part of the case may therefore have a dif- 
 ferent result from that which remains to be considered, if it should appear 
 on the reference that the money loaned to Hunt was intended to be for 
 his wife's share of this fund. In that event the Commissioner will ascer- 
 tain the amount due Mrs. Hunt when her husband received the money, 
 and apply her share to the amount then received. But if it appears that 
 the money advanced was not intended for his wife's share, but was a mere 
 loan for interest, then the question will arise, whether the wife's equity 
 can be made liable for the debt of the husband ; which will depend upon 
 and be decided by the view which shall be taken of the second part of 
 this case. 
 
 Second. Can the share of Mrs. Hunt of the parts of Wade and Mary, 
 be declared liable to the payment of any sum advanced by Mrs. Heath to 
 William Gr. Hunt, out of the profits of the estate ? I think not. This 
 is an equitable chose in action, not reducible into possession by Mr. 
 Hunt at the time he received the money from Mrs. Heath. This pre- 
 cludes the possibility that a payment was then intended. But he could 
 not at any time have reduced it into possession, until by the decree of 
 this Court it is made available ; for it was a mere expectancy in remainder 
 among several joint tenants after the death of Mrs. Heath, until she 
 surrendered in this case her life estate, and the Court decreed partition. 
 To permit such an Interest to be made liable for the husband's debt 
 would defeat the wife's equity. For, whether he be solvent or insolvent, 
 the same result would follow ; his debt would be no provision for the 
 wife. But in equity, he must, whether he be plaintiff or defendant, if 
 ^,Q„-, he receive his wife's portion *by the decree of the Court, make an 
 ■^ adequate settlement upon her. If the wife's portion is to be re- 
 garded as paid to him in his own debt, he might, if solvent, be compelled 
 to settle the same sum ; but if he was insolvent he could not do this, and 
 the wife would be left unprovided for. But the Court would never 
 suffer the wife's fortune to be applied to the husband's debt, only where
 
 *106] COLUMBIA, DECEMBER, 1834. 87 
 
 it could regard him as a purchaser of it by a previous or a present ade- 
 quate settlement. 
 
 The cases which I have looked into, it seems to me, sustain these 
 views, except the last, which is, I think, a necesary deduction from the 
 preceding. 
 
 In Howard and wife v. Moffatt, 2 John. C. R. 206, which was the 
 case of husband and wife, suing for the money of the wife in the hands 
 of her brother, and which she had requested should not be paid over to 
 her husband, the Chancellor said, " the general rule is, that where the 
 aid of the Court is I'equisite to enable the husband to take possession of 
 the wife's property, he must do what is equitable by making a reasonable 
 provision out of it for her maintenance and that of her children, and with- 
 out that, the aid of the Court will not be afforded him.'''' If Hunt 
 could not receive his wife's fortune without making a settlement, it would 
 seem to follow that Mrs. Heath, who can have no greater rights thp,u he 
 has, must at least consent to and make an adequate settlement before she 
 could claim to have it made liable to her debt. 
 
 In Kenny v. TJdal & Kenny, 5 John. C. R. 464, which was a hill 
 against the husband and the assignee of husband and wife (when an 
 infant) of the wife's equity : the Chancellor held, that the assignment 
 was null and void. In that case, at page 473, he said, " It is now under- 
 stood to he settled, that the wife's equity attaches upon her personal 
 property lohen it is subject to the jurisdiction of the Court and is the 
 object of the suit, into whosesoever hands it may have come, or in what- 
 ever manner it may have been transferred." In Haviland v. Myers, 6 
 John. C. R. 2t, the Chancellor said, "the wife's equity, to a suitable 
 provision for the maintenance of herself and children, out of her separate 
 real and personal estate descended or devised to her during coverture, is 
 well established, and would prevail equally against the husband or his 
 assignee, or any sale made or lieu created by him, even for valuable 
 consideration, or in payment of a just debt ; and whether the suit in 
 protection of that equity be instituted by the wife, or by any *other p^,, ^^ 
 person on her behalf." These authorities are too clear to admit •- 
 of a doubt that the wife's fortune cannot jure mariti, be decreed in 
 equity to be paid to the husband, his assignee or creditor, until a suitable 
 provision has been made for the wife and her children. In this State, in 
 Durr u. Bowyer, 2 M'C. Ch. R. 372, the same principles were acknowl- 
 edged and supported. In that case, my brother Johnson, speaking of 
 the wife's equity, and after having ruled that the Court will not suffer it 
 to be removed out of the jurisdiction until provision is made, says : 
 "the same protection is afforded to the wife in op>position to others 
 claiming through the husband, whether their claims arise by operation 
 of law, as in cases of bankruptcy or insolvency, or under the 
 voluntary assignment of the husband for a valuable consideration.''^ 
 
 In this case, Mrs. Heath claims under Hunt, and as his creditor; but 
 she has not as high claims as she Avould have were she his assignee by 
 operation of law, or by his own deed. How can it be pretended that 
 she is entitled to make the wife's fortune lial)le to a claim against the hus- 
 band, unaccompanied by even his consent to t-uch a course, when it is 
 clear that even his assignment could not prevail against her rights ?
 
 88 SOUTH CAROLINA EQUITY REPORTS. [*107 
 
 In Thomas v. Sheppard, 2 M'C. Ch. R. 36, the Court, upon principles 
 and for reasons which are to my mind clearly erroneous, refused to set up 
 the wife's equity, yet recognized and acknowledged the rules which I have 
 already stated. 
 
 From these views, it is clear that the share of Mrs. Hunt, of the parts 
 of "Wade and Mary, is not, and cannot be made, liable to the payment of 
 any sum advanced by Mrs. Heath to Wm. G. Hunt, out of the annual 
 profits of the estate. 
 
 The Chancellor's decree, directing a settlement of this part of Mrs. 
 Hunt's equity, and referring it to the Commissioner to report the proper 
 trusts for a settlement thereof, is affirmed. It is also ordered and decreed, 
 that the Commissioner inquire and report whether the executrix, Mrs. 
 Heath, intended, and Mr. Hunt accepted the money loaned to him, as an 
 indirect payment of Mrs. Hunt's share ot the annual profits of the estate ; 
 if so, that her share be applied in extinguishment of the sum so advanced 
 at the time advanced ; but if not, that he report the proper trusts of a 
 settlement of her share of the annual profits. 
 
 Butler, J., (sitting for Harper, J., who was absent) concurred. 
 Johnson, J., dissented. 
 
 *108] *JoHN Bell, Survivor, v. Ann and Elizabeth Coiel. 
 
 Generally the declarations of a grantor made after a sale cannot be admitted to 
 impeach the sale; but where there is a community of interest and design in 
 several, or circumstances showing a conspiracy between the grantor and the 
 defendants to defraud the plaintiflF, such declarations would be admissible. [*109] 
 
 Where the husband would be a competent witness the wife would be sworn: and 
 where the husband if living would have been competent to prove fraud in a deed 
 from himself to his sisters, his wife is competent to prove his acts and declara- 
 tions. [*110] 
 
 Lancaster. — Before Chancellor De Saussure, July, 1834. 
 
 The plaintiS", a judgment creditor of Alston Coiel, filed this bill to set 
 aside a bill of sale for negroes which the latter had made to the defend- 
 ants, his sisters, alleging it to have been executed with an intent to defraud 
 creditors. The Chancellor, by his decree, declared the bill of sale void, 
 and the property subject to the payment of Coiel's debts ; and the defend- 
 ants appealed. The only grounds which need be stated, and the facts 
 connected with them, are set out in the opinion of this Court. 
 
 Clarke and Clinton, for the appellants. 
 
 De Saussure, contra. 
 
 Johnson, J. Excluding altogether the evidence which is regarded as 
 exceptionable in the grounds of this motion, and which was expressly 
 reserved by the Chancellor, we concur with him that the merits are with 
 the plaintiff ; and that might suffice for the case itself, but there are some 
 questions of law arising out of it which deserve a more particular con-
 
 *108] COLUMBIA, DECEMBER, 1834. 89 
 
 sideration, and I shall notice the circumstances only so far as may be 
 necessary to show their application. 
 
 The plaintiff was the creditor of Alston Coiel, for a large amount, for 
 which he had obtained judgment. A ca. sa. was issued, on which he was 
 arrested and coraraitted to jail, where he died insolvent ; and the object 
 of this bill was to set aside a bill of sale executed by him, not long before 
 his arrest, to the defendants, his sisters, for ten negroes, on the ground 
 that it was covinous and intended to defraud the plaintiff and others, his 
 creditors, and to charge the negroes with the payment of his debts. To 
 prove the fraud, Mrs. Terry (late widow of Alston Coiel), and who had 
 formally released her interest in his estate, was sworn for the plaintiff. 
 It appeared that during his confinement Alston Coiel had intended to 
 render a schedule of his estate, with a view to apply for the benefit of the 
 insolvent debtor's act, and the defendants being apprehensive that he 
 would include these negroes in it, one of them (Elizabeth) entreated this 
 witness to advise him against it, saying *that witness would be r^-iAq 
 as much benefited as herself — she did speak to him on the sub- L 
 ject, and he stated in reply that the negroes were in truth his own — that 
 defendants had never paid anything for them — that he had evidence 
 which would show it, and would not swear a lie about it. 
 
 Two objections are raised to the admissibility of this evidence : First, 
 That being declarations made after the execution of the bill of sale to 
 the defendants, they were inadmissible. Secondly, That the widow of 
 Alston Coiel was an incompetent witness to prove his declarations. 
 
 First. The general rule certainly is, that the declarations of third 
 persons are not evidence for or against the parties, nor will the declara- 
 tions or admissions of a grantor or seller, made subsequently to the grant 
 or sale, be received against the grantee or buyer, because, having been 
 divested by the grant or sale of the thing granted or sold, neither his acts 
 nor declarations can divest the rights which arise out of them. But 
 where there is a community of interest or design in several, in relation to 
 the same subject-matter, and that fact is clearly established, the acts and 
 declarations of one in reference to it are I'eceived in evidence against the 
 others. Thus the admissions of one partner, in relation to the partner- 
 ship concerns, are evidence against the others ; so of the admissions of 
 one of several joint makers of a promissory note that is not paid ; so in 
 the King v. The Inhabitants of Harwicke, 11 East. 585, where Lord 
 Ellenborough, recognizing the general rule that the admissions of one of 
 several defendants in trespass is not admissible to prove that the others 
 were co-trespassers, yet lays it down, that if they be established to be co- 
 trespassers by other competent evidence, the declaration of one, as to the 
 motives and circumstances of the trespass, will be evidence against all 
 who are proved to be combined together for the common object. Very 
 many examples, founded on the same principle, might be drawn from 
 cases of conspiracy, where the rule is (the fact of conspiracy being proved), 
 the admission of one is evidence against all the conspirators. (See Star- 
 kie, part iv., 407, tit. Conspiracy.) 
 
 Independently of the particulars before stated, the circumstances of this 
 case create a very strong presumption that there was a combination 
 between the defendants and Alston Coiel to defraud the ])laintiff; but 
 that presumption appears to me necessarily to grow out of the facts
 
 90 SOUTH CAROLINA EQUITY REPORTS. [*109 
 
 ^,,„-, stated by Mrs. Terry. If the transaction *was bona fide, how 
 -J were the plaintiffs interested in Alston Coiel's including or not 
 including those negroes in his schedule ? What motive could they have 
 had to induce his wife to practice upon him to prevent it, unless it was 
 the consciousness that the transaction would not bear investigation when 
 opposed by an honest purpose on his part ? These circumstances 
 sufficiently show the combination, and according to the rule, his decla- 
 rations were admissible. 
 
 Second. In general, the wife cannot be examined for or against the 
 husband, or in any case to which he is a party, or in which he may be 
 interested ; and the rule is so imperious that it cannot be dispensed with 
 even when the husband consents that she may be sworn against him. 
 Barker v. Dixer, Ca. Tern. Hardwicke, 2G4. The only exception 
 allowed is in the case of personal violcee done by the husband to the 
 wife, when she is admitted from necessity : and in Aveson v. Kinnaird, 
 6 East. 192, it is said arguendo that the dissolution of the marriage by 
 divorce, or even death, will not absolve the wife from the obligation to 
 preserve the secrets of her husband inviolate. But when the husband 
 himself would be a competent witness, the wife may be sworn, and if the 
 party might insist on swearing the husband, and by this means obtain 
 the truth, it would be straining the rule of policy too far to deprive him 
 of the evidence of the wife when that of the husband could not be 
 obtained. Williams v. Johnson, 1 Str. 505; Starkie Ev., part iv. 109. 
 Now Alston Coiel stood indifferent between these parties, for although 
 he was interested, his interest was equally balanced on both sides. If 
 the plaintiff recovered, this would have been so much subtracted from 
 his debt due them, and he would have been liable to the defendants for 
 the value of the negroes — if the defendants, then he would have been 
 still the debtor of the plaintiff in the whole amount. He might, there- 
 fore, have been sworn, and consequently the plaintiffs are entitled to the 
 benefit of the wife's evidence. 
 
 Decree affirmed. 
 
 O'Neall, J., and Harper, J. concurred. 
 
 *111] *JoHN Backler, and others, vs. W. Farrow, and others. 
 
 On a bill for partition, the Court, in ordering an account for rents and profits, may 
 also decree compensation for the deterioration of the laud by cultivation, as for 
 waste. [*111] 
 
 Spartanburgh. — June, 1834. 
 
 The bill in this case was filed for partition. The defendants had been 
 for many years in possession of the land, and cultivated it, by which its 
 value was impaired The Appeal Court in December, 1832, after par- 
 tition had been made, ordered an account to be taken of the rents and 
 profits, and in the opinion of the Court the following language is held : 
 "Rent, which the land was rendered capable of producing by the labor 
 and expense of the tenant in possession, as by erecting buildings, or
 
 *111] COLUMBIA, DECEMBER, 1834. 91 
 
 clearing, or draining lands, is not to be taken into the account. But if 
 by any of these means, the land has deteriorated in value, he is account- 
 able for this as for waste. The motion is granted, and a reference on 
 these principles ordered." On the reference, it appeared that the whole 
 of the land had been rendered capable of producing rent by the lal)or of 
 the defendants, and that it had also deteriorated in value in conse(juence 
 of their cultivation to an amount reported by the Commissioner. On 
 exception being taken to the report, the Chancellor sent it back to the 
 Commissioner, on the ground that it was not made up in conformity to 
 the decree of the Appeal Court. 
 
 The plaintiffs now move this Court to reverse the decision of the 
 Chancellor, and to confirm the report. 
 
 Boho, for tlie appellants, submitted the case on the above brief, without 
 argument. 
 
 Harper, J. This case is very imperfectly presented to us in the 
 absence of counsel. The exception to the Commissioner's report seems 
 to have been sustained on the ground that damages for waste cannot Ijc 
 recovered in this Court ; the remedy being at law. This, no doubt, is in 
 general true ; but having proper jurisdiction of the case, there is hardly 
 any question in relation to property, which this Court may not determine 
 incidentally for the purpose of doing complete justice, and preventing 
 multiplicity of litigation. The rule is laid down in the case of Jesus 
 College V. Bloom, 3 Atk. 262 ; Amb 54, that a bill will not lie for waste 
 merely; but, if the party be properly in Court for another purpose, 
 *as to obtain an injunction, then an account of past waste will be p^, ,£, 
 granted. The principle is very fully illustrated in the reasoning ^ 
 of the case. There are many cases in which an account has been allowed 
 of the produce of mines ; and the opening of mines is waste. There is 
 no question but that the Court was properly in possession of this case, 
 and incident to it was the account for rents and profits, and the account 
 for waste. 
 
 The motion is therefore granted, and the Commissioner's report 
 confirmed. 
 
 Johnson, J., and O'JSTeall, J., concurred. 
 
 Jane Smith, and others, vs. James Smith, and others. 
 
 The costs of a judgment on an administration bond against the surety (or coadmin- 
 istratrix,) who was subrogated to the rights of the creditor, cannot rank as a 
 bond debt. [*112] 
 
 Spartanburgh. — June, 1834. 
 
 O'Neall, J. Jane Smith and William R,. Smith administered upon 
 the estate of James Smith : William R. Smith had the entire manage- 
 ment of the estate, and all the funds were received l)y him : Jane Smith, 
 however, survived him, and William Bradford, as guardian, recovered
 
 92 SOUTH CAROLINA EQUITY REPORTS. [*112 
 
 against her as surviving administratrix, the sura of $230 50, with interest 
 from the first of March, 1809, vi'hich she paid on the 16th of September, 
 1824 : she also paid $60 87 costs. 
 
 Inasmuch as Jane Smith's liability for the payment of the principal 
 sum and interest recovered, arose out of the administration of William 
 R. Smith, she was in equity substituted for the creditor, and was held 
 to be entitled to be paid as a bond debt. 
 
 The Commissioner and Chancellor have allowed the costs of that 
 recovery to stand upon the same ground ; but this is inadmissible, the 
 costs never were, in any point of view, such a demand as could have been 
 recovered on the administration bond. They could not, therefore, have 
 rank as a bond debt. 
 
 But Jane Smith ought to. have paid the demand against her without a 
 suit : the costs were therefore unnecessary, and she is not now entitled to 
 recover them. 
 
 *11^1 *The exception of the defendant to the Commissioner's report 
 -I in this respect is sustained, and the Chancellor's decree reformed. 
 
 Johnson, J., and Harper, J., concurred. 
 
 Boho, for the appellant. 
 
 Smith and Thomson, contra. 
 
 Matthew Bryson, Adm'r cinn test. ann. of "William Bryson, Sen., 
 vs. George Nickols, and others. 
 
 Testator's will directs, that after the death of his wife, his negro girl Fan is to be 
 sold, and her proceeds divided among his five eldest children; but if his son Wil- 
 liam choose he may keep Fan by paying to each of the said children one hundred 
 dollars. And directs the residue of his estate to be divided among his five younger 
 children: Fan had one child after the execution of the will and before testator's 
 death, and five after his death, and before the death of the tenant for life: — Held, 
 that the increase of Fan before testator's death, fell into the residuum: that a 
 specific vested legacy in Fan, to take eifect on the death of testator's wife, was not 
 given either to William, or (on his refusal to take her at the price fixed) to the 
 elder children; but that this was a mere direction to divide the proceeds of Fan's 
 sale among the elder children, with a privilege to William of taking her at that 
 time at a fixed price; and consequently', that her increase after testator's death did 
 not belong either to William ( if he had elected to take her) or to the elder children, 
 but fell into the residuum, and was divisible among the younger children. [*114] 
 
 When there is a necessity for an executor or administrator to come into a Court of 
 Equity to obtain its judgment, a counsel fee paid by him will be refunded out of 
 the estate. [*I21] 
 
 Laurens. — Before Chancellor Johnston, July, 1834. 
 
 William Bryson, Sen , died, leaving offeree his last will and testament, 
 which contains the following clauses: "It is further my will that after 
 the death of my wife, that my negro girl Fan, if my son William think pro- 
 per, is to be sold and the proceeds of her to be equally divided among my 
 sons Matthew, James and Robert, and my daughters, Margaret and 
 Agnes : but if William choose to keep the girl Fan, and not sell her, it
 
 *113] COLUMBIA, JANUARY, 1835. 93 
 
 is ray will that be may, by paying to each of the above-named chikli-en 
 one hundred dollars. It is also my will and desire that all the rest of my 
 negroes that are not before named shall remain on the plantation as long 
 as any two of my children shall remain single and live together, and also, 
 all stock of every kind, household and kitchen furniture, and all other 
 things necessary to keep up the plantation. And it is further my desire, 
 and I leave it discretionary with ray executors, hereafter named, that as 
 any of my children marry, that they give them such property and things 
 as they think fit and necessary for them. And it is my will, that as soon 
 as my children be all married or break up living together, that the last- 
 named negroes and stock and all the other property left on the plantation, 
 shall be divided among my son William and my four youngest children ; 
 and I do hereby vest my son William with the power to divide the pro- 
 perty between himself and his younger brothers, and two younger sisters, 
 as he may think fit and necessary; only it is my will, that if *any r;^^^ « 
 of the negroes given and named to any one of my children, shall L 
 die before this division takes place, it is my desire that the loss be made 
 up to them out of that property, and I give the same to them and their 
 heirs, forever." William and the widow were appointed executor and 
 executrix, and qualified. 
 
 After the execution of the will and before the testator's death, the 
 negro woman Fan, named in the first clause of the will, had one child 
 named Milly ; and after the testator's death, and before the death of his 
 widow, Jane Bryson, who had a life estate in her, Fan had five other 
 children, all of whom remained in Mrs. Bryson's possession until her 
 death. 
 
 William survived his mother, and after the death of both, the plaintiff 
 administered on the testator's estate with the will annexed, and sold all 
 the negroes. 
 
 This bill was filed against all the parties interested, requiring them to 
 present their claims to the Court, and asking the advice and direction of 
 the Court as to the disposition of the moneys arising from the sale, 
 according to a legal interpretation of the will. 
 
 On the hearing of the cause, evidence was given, from which it seemed 
 that William Bryson, after the death of his mother, refused to take Fan 
 at the price fixed in the will. 
 
 Johnston, Chancellor. I came to a decided opinion on this case, at 
 the hearing, and regret I did not then pass a decretal order on it, and 
 thus have prevented unnecessary delay. The legislature seems, however, 
 to have required that decrees should be accompanied with the reasons of 
 the Court. Intending to give my reasons with the decree, I took time 
 for that purpose ; and have, by an unusual and uncontrollable train of 
 circumstances, been prevented from doing so hitherto, and even now must 
 content myself with but an imperfect exposition of those reasons. 
 
 There is no doubt but that the price for -which Fan sold, must be 
 divided among the five children of the testator, Matthew, James, Robert, 
 Margaret and Agnes. Whether William, jun., did or did *not r+iic 
 elect to purchase her, she has been sold by the plaintiff, in his •- 
 capacity of executor, and as I understand, the sale is not impeached, nor
 
 94 SOUTH CAEOLINA EQUITY REPORTS. [*115 
 
 is there any objection to the payment of the proceeds to the persons I 
 have named. 
 
 It is conceded, that the child born of Fan, between the execution of 
 the will and the testator's death, did not pass with her, but fell into the 
 residuary clause : of course the proceeds of that one are distributable 
 among the residuary legatees, William Bryson, Henry Bryson, Hunter 
 Bryson, and the testator's two daughters, Jane and Polly. 
 
 The contest is for the proceeds of the children born of Pan after the 
 testator's death. The five older children claim them under the clause of 
 the will first recited in the bill ; the younger children under that last 
 recited ; and the representative of William, jun., claims them exclusively, 
 setting up an election for William. 
 
 I think the older children are not entitled ; that William is not exclu- 
 sively entitled, w^hether he elected or not, or whether his representative 
 has or has not a right now to elect him ; but that the younger children, 
 of whom William is one, are among them entitled. 
 
 The claim of the older children, and the exclusive claim of William, 
 both stand upon this assumption, that there was a good specific bequest 
 of Fan, and that, by force of law, carried with her such issue as she had 
 after the testator's death : That is, that at the testator's death. Fan 
 became a vested legacy, and a right in her thus settling in the legatee, 
 she w^as thenceforth the legatee's property, and her issue being issue of 
 the legatee's property, belonged also to him. 
 
 In ray apprehension. Fan was never bequeathed at all. My con- 
 struction of the will is simply this : That the testator directed her to be 
 sold, giving William a preference among the purchasers, and in case he 
 bought, fixed the price. There was an obvious propriety in his fixing 
 the price if William should be the purchaser, and neglecting to fix it if 
 she should be exposed to public sale. — William was one of the executors, 
 and if he should not avail himself of his preferable right to purchase, but 
 expose Fan to sale, the biddings would determine the price. But if he 
 chose to purchase himself, and not expose the property to sale, he being 
 one of the executors, unless the testator fixed the price, one could not be 
 jj5l,„-] fixed. There would be wanting the two minds which the *law 
 -^ requires to meet in a contract. The testator, therefore, chose to 
 offer proposals forming his side of the contract, while yet alive. 
 
 But, although Fan was not bequeathed, but a mere power to sell her 
 was given, still, as the will gives the older children a right to the pro- 
 ceeds — a right which vested in them at the testator's death, it was 
 plausibly contended that all her after increase enured to the same right. 
 This might prevail, if there was nothing to show that the sale was 
 to extend to Fan, and to Fan only — that the testator did not intend to 
 include the increase in the sale. 
 
 The sale was to take place at the widow's death. The testator fixed a 
 price. The subject of sale was Fan. Her value the testator could fix, 
 because he knew her ; but if he intended the increase to go with her, he 
 could not have set a price, since he could neither know whether she 
 would have children, or how many, or the value of any of them. Would 
 it have been tolerated that William should take Fan and a large family 
 of children at five hundred dollars ? Would not every body have ex- 
 claimed against this as a gross and corrupt violation of the testator's
 
 *116] COLUMBIA, JANUARY, 1835. 95 
 
 intention ? That " a bargain is a bargain," is the maxira of unfair 
 dealers; but tlie law requires, "no bargain is good but a fair one." 
 Then, what William was to get under his purchase, is a fair measure of 
 the rights of the older children. They have a right to the proceeds of 
 that property, and that only, which he had a right to take at five hun- 
 dred dollars. He was entitled to take, at five hundred dollars, the same 
 property, neither more nor less, which, if he did not choose to purchase 
 it, he was bound to expose to public sale. He was not bound to 
 expose to public sale any thing which he had not a preferable right to 
 buy, and that at five hundred dollars. Would it do for the elder 
 children to say by virtue of their interest in the proceeds, " if William 
 buys, he is only to get Fan, because he gives but five hundred dollars, 
 but if others purchase, the increase shall be included in the sale?" 
 
 My opinion then is, that the younger children are entitled among them 
 to the proceeds of Fan's issue, born after the testator's death. 
 
 The parties may, however, very well have entertained doubts on the 
 proper construction of this will. Therefore, 1 shall direct that the costs 
 be paid rateably out of the three funds arising from the sale of Fan, of 
 her issue in the testator's life, and of her issue after his death, before 
 those funds are distributed agreeably to this opinion; *which r:jcii»T 
 funds must be accounted for, if required, before the Court. '- 
 
 Let the foregoing opinion stand for the decree of the Court. 
 
 An appeal was taken on the part of the testator's five elder children, 
 and a motion made before this Court to modify the decree of the 
 Chancellor on the grounds : 
 
 1. That Fan is bequeathed to the five elder children, and the increase 
 follows the condition of the mother, 
 
 2. That the younger children having no interest in Fan, can have no 
 right to her increase born after the death of the testator. 
 
 3. That William Bryson, jun., having failed at the proper time to 
 make his election to keep Fan at the price fixed, the right of the elder 
 children became vested, and William's administrator cannot now set up 
 his right to elect. 
 
 And the executor appeals on the ground : That he should have been 
 allowed for a counsel fee of the estate, for having this case brought before 
 the Court for its adjudication. 
 
 Irhy and Caldwell, for the appellants. 
 
 Young, contra. 
 
 O'Neall, J. I agree with the Chancellor, that the negro woman Fan 
 has been properly sold, and that her proceeds are divisible between the 
 testator's sons, Matthew, James and Robert, and his daughters Margaret 
 and Agues ; and that the child born before the testator's death is a part 
 of his residuary estate, and is divisible under the residuary clause of his 
 will. 
 
 I also agree with him that the increase of Fan, born after the testator's 
 death, but before the death of the tenant for life, constitutes another part 
 of the residuary estate, and must be divided between the residuary 
 legatees. 
 
 It is not, as I understand, pretended that William Bryson ever did
 
 96 SOUTH CAROLINA EQUITY REPORTS. [*117 
 
 elect to take Fan at the price or sura limited by the will ; but if he had 
 done so, he could not have acquired any right to the increase ; for, at a 
 certain time (the death of the widow) he is allowed to buy Fan, if he 
 chooses, for a given sum. Until he made the purchase by taking the 
 slave and agreeing to pay the price, he could have no vested right in her 
 which would entitle him to the increase. 
 
 *1181 *The five elder children, it seems to me, have proceeded under a 
 -' mistaken notion that Fan was bequeathed to them at the death of 
 the testator, and the possession postponed until the death of the widow. 
 If this had been so, then their construction of the will would have been 
 right ; but she never was bequeathed to them at all ; her proceeds, when 
 sold, were directed to be paid to them. But, if the bequest of the pro- 
 ceeds of the sale of the slave was equivalent to a bequest of the slave 
 herself, still I think the plaintifiTs would not be entitled to more than the 
 specific slave. 
 
 The words of the clause, under which the five elder children claim, 
 are : " It is further my will that after the decease of my wife, that my 
 negro girl Fan, if my son William thinks proper, is to he sold, and 
 the proceeds of her to be equally divided among my sons Matthew and 
 James and Robert, and my daughters, Margaret and Agnes, but if 
 William choose to keep the girl Fan, and not sell her, it is my will that 
 he may, by paying to each of the above-named children, one hundred 
 dollars. " 
 
 The first rule in the construction of a will is, that the intention is to 
 have effect, if it can be clearly ascertained from the will and be not 
 contrary to some known rule of law. Here the intention is perfectly clear, 
 that the testator only intended that the specific slave should be sold, and 
 the proceeds divided. This is manifest by his designating her as the 
 negro girl Fan, and by the price which he fixed on her alone. 
 
 But, to entitle the elder children to the increase of Fan, the legacy in 
 their favor ought to have given them a vested right in her from the death 
 of the testator, to be enjoyed at the death of the tenant for life The 
 legacy is, however, purely future and contingent ; it is a mere direction 
 by the will that she should, after the death of the testator's widow, be 
 sold ; but this was not even positive and peremptory — it was to be so 
 " if my son William think proper :" if he thought proper he might take 
 her himself, by paying to the elder children one hundred dollars each. 
 These provisions made the legacy of Fan (if it can be so considered) 
 purely contingent : no one under the will had a fixed right as a legatee 
 to her. She might be sold by William, or he might keep her ; and until 
 the death of the widow, and he had decided which course he would 
 pursue, the will was wholly provisional, " The distinction between 
 vested and contingent legacies is, that a vested legacy, immediately on 
 *1191 *^® death of the testator, attaches as a debt upon *his real or 
 -^ personal estate ; whereas a contingent legacy does not attach 
 upon either, until the contingency happens. In the first case, the legacy 
 is debitum in prcesenti, solvendum in futuro ; but where the legacy is 
 merely contingent, not constat, whether under the will the fund will ever 
 be charged with it." 2 Bridg. Dig. Tit. Leg. sec. ix. par. 320. This 
 rule applies more particularly to pecuniary legacies, but still its analogy 
 ■will reach to specific legacies. For the question in both is, whether a
 
 k 
 
 *119] COLUMBIA, JANUARY, 1835. 97 
 
 present intei'est passes ; if it does not, the legatee cannot have any right 
 until the contingency happens. In this case, so far as the older children 
 are concerned, the legacy before us is pecuniary and contingent : it is 
 pecuniar)^, because it entitles each one to a share of the proceeds of the 
 slave, in money ; it is conthigent, because its eventual payment depended 
 upon the life of a slave, as the thing, whereby the fund was to be created. 
 As was said by that eminent lawyer and good citizen, Mr. Grimke, 
 (whose early death South Carolina will long deplore,) in h'is argument of 
 Taveau v. Ball, 1 M'C. Ch. Rep. 13 : "If the time of division be not 
 the substance of the gift, it is only matter of regulation." That applies 
 to cases where there has been a gift to several, and a future time ap- 
 pointed for division — then, if the time of divison be not the substance of 
 the gift, it only operates to regulate the division to be made. But in 
 this case, the rights of the elder children are not to the thing itself, but 
 that the proceeds of the slave, when sold, should be divided among them. 
 The division is, hence, of the substance of the gift ; and they can take no 
 interest, until by law, or rather by the will, that division is to be made. 
 The rule, as to the vesting of legacies, is very well stated in Bac. Ab. tit. 
 Leg. E. 2 : " If a legacy be devised to one to be paid or payable at 
 twenty-one, or any other age," it is vested — the time being annexed to 
 the payment, and not to the legacy itself; "but if a legacy be devised 
 to one at twenty-one, or when he shall attain the age of twenty-one," the 
 legacy would not vest until the legatee was of the age prescribed. The 
 application of this rule to the case before us, shows that the legatees now 
 claiming had no vested right until the death of the widow. For it is a 
 bequest to them, "after the decease of my wife." This is a distinct 
 clause from that in which he had given her a life estate ; and her death 
 is fixed upon as the commencement of their interest : and the clauses do 
 not authorize the construction that the estate for life and the remainder 
 constitute together one gift ; each is separate and *distinct, and r*i c)q 
 the testator, after his widow's death, is to be regarded as then ^ 
 making a disposition of the slave. 
 
 The case of Swinton v. Legare, 2 M'C. C. Rep. 440, is a very clear 
 authority iu favor of the view that the elder children did not take a pre- 
 sent interest. There the testator devised and bequeathed to his daughter 
 Susannah Swinton, ^'during life, and after her death to he equally 
 divided among the survivors of her children, to each of them share and 
 share alike, as they shall attain the age of tioenty-one or marriage.''^ 
 The question was whether all of her children living at the testator's death, 
 or only those who were alive at her death, would be entitled to take. It 
 was held, that the legacy in remainder did not vest at the testator's death 
 in all Susannah Swinton's children ; but, at her death, it vested in those 
 then alive. That case turned, it is true, upon the construction of the 
 word "survivors," but still the case is an authority for ray purposes here. 
 For, as Judge Nott in the conclusion of the case said, "being given to 
 her during life, and after her death to be divided among her surviving 
 children, it must necessarily relate only to those who were living at the 
 time of her death." So here, the bequest being after the death of the 
 testator's widow, that the slave Fan should be sold, and her proceeds be 
 divided among certain persons, it follows that their rights arise at the 
 death of the testator's widow, and not before.
 
 98 SOUTH CAROLINA EQUITY REPORTS. [*120 
 
 The case of Taveau v. Ball, 1 M'C. C. Rep. 7, if it has any application 
 to the case, militates against the purposes for which it was cited. In it 
 the Chancellor says, "the time of the division is not at all connected with 
 the gift. The preceding clause had given these estates, absolutely to the 
 sons, and gave a plain vested interest.^'' In the case before us, the clause 
 of the will does not give Fan to the elder children absolutely, nor does 
 it give them any plain and vested interest in her. The time of division 
 here is directly connected with the gift ; indeed, it depends upon the sale 
 for division. If it had been impossible to make a sale, by the death or 
 worthlessness of the slave, the gift to the elder children w^ould have 
 failed. 
 
 The case of Brailsford and wafe v. Hey ward, 2 Eq. Kep. 18, turned 
 altogether upon the intention of the testator, and has not the slightest 
 analogy to the case before us. 
 
 So far, therefore, I am perfectly satisfied with the Chancellor's decree ; 
 
 ^, g, -j and I have added these remarks, to those contained in his ^decree, 
 
 -^ more to satisfy the parties than from any actual necessity requiring 
 
 it to be done, in order to a correct understanding or decision of the 
 
 cause. 
 
 But I think the Chancellor ought to have directed the counsel fee paid 
 by the plaintiff to be refunded to him, in the same manner in which he 
 directed the costs to be paid. There seems to have been a necessity for 
 the plaintiff to come into the Court of Equity, to obtain its judgment, as 
 to the construction of the testator's will. The case of Warden v. Burts, 
 2 M'C. Ch. Rep. 16, allows the counsel fee as well as the costs, where 
 they have not been the result of the executor's or administrator's mis- 
 conduct. 
 
 The Chancellor's decree is in this respect modified, and in all others 
 affirmed. 
 
 Johnson, J., and Harper, J., concurred. 
 
 John P. Sarter and Wife, and others, vp. Jesse Gordon, Adm'r. 
 
 Specific performance of an agreement for the sale of slaves decreed, [*121] 
 
 If one undertake for minors his act will bind him, although it may not them, and the 
 contract will be binding on the other party, although voidable at the option of 
 the minors. [*12.5] 
 
 Inadequacy of price, unaccompanied with circumstances of fraud, not sufficient to 
 prevent enforcement of a contract. [*126] 
 
 Time, when not of the essence of the contract, no excuse for nonperformance unless 
 it amount to an abandonment. [*12fa] 
 
 It is a genei-al rule that specific performance will not be decreed of contracts for 
 personal chattels. Exceptions where property is of a peculiar character: Domestic 
 servants, or those brought up in a family, come within the reason of the excep- 
 tions. [*126] 
 
 General principles on which specific performance of contracts is decreed, and the 
 cases on the subject considered. [*133] 
 
 The general principle is, that any fair and reasonable contract will be enfoi'ced 
 specifically, unless it appears that full justice may be dane by a compensation in 
 damages. In some cases of contracts for slaves, damages would not be sufficient 
 compensation. [--135]
 
 *121] COLUMBIA, JANUARY, 1835. 99 
 
 According to the principle of all the cases, a bill may be maintained for slaves 
 brought up in a family: and it may be laid down as a general rule that a bill will 
 lie fur the specific delivery of slaves, as for the specific performance of a contract 
 for the sale of land. [*13G] 
 
 There may be exceptions to the riile — as if the purchaser contracted for the slaves 
 as merchandise, intending to sell again; in such case, justice would be done by 
 damages. But this is not generally so, or to be presumed. [*137] 
 
 If it appear on the face of a bill, that it was prematurely filed, and advantage be 
 taken by demurrer, it will be fatal; but if tliere be no demurrer, and the case be 
 not brought to a hearing till after the time fixed for the performance of the con- 
 tract, the Court will not then dismiss the bill, but give leave to amend on terms. 
 A bill may propei'ly be filed to prevent the sale of slaves before the time fixed in 
 the contract of sale for their delivery; and then it is proper, to prevent multiplicity 
 of suits, that all matters in controversy be brought forward. [*1C7] 
 
 Any one offering to perform a contract on behalf of infants is their agent, and his 
 offer will be sufficient to compel performance by the other party. [*13S] 
 
 In a contract with the father for the benefit of his infant children, there is not such 
 want of mutuality as will exonerate the other party from performance. [*139] 
 
 Specific performance of contracts for leases has, in some cases, been refused on the 
 ground of the insolvency of the tenant; different on a contract to purchase — for 
 there the Court will not decree title to be made until the money is paid. [*140] 
 
 The contract sought to be enforced being certain, it will not be affected by any 
 uncertainty in another separate contract for a different matter, contained in the 
 same instrument. [*140] 
 
 Union — 
 
 This bill was filed ITth jS'overaber, 1832, by John P. Sarter, and wife 
 Patsey, late Patsey Sims, daughter of Reuben Sims, the said Reuben 
 Sims and his infant children, Ann, Mary, John, James, "William and 
 Reuben, by their next friend, Nathan Sims, against the defendant, as 
 administrator with the will annexed of Edward Stevens. It states that 
 the said Edward Stevens, in his lifetime, and Reuben Sims, entered into 
 the following agreement, to wit : — 
 
 State of South Carolina,") 
 Union District. j 
 
 Agreement made and entered into this 11th day of January, 1832, 
 between Edward Stevens of the State and district aforesaid, of the one 
 part, and Reuben Sims, of the State and district aforesaid, of the other 
 part, as follows : — The said Edward Stevens doth hereby agree with said 
 Reuben Sims, to sell to the children or their agent, of the said Reuben 
 Sims, all that family of negroes *and their increase, known by the r*222 
 name of Abrara and his family, that I bought at sheriff's sale at •- 
 Union Court House on sale-day, in September, in the year 1827, for the 
 sum of eighteen hundred dollars and interest from the time that he bought 
 them ; and that he, the said Edward Stevens, in January next, on receiv- 
 ing from the children, or their agent, of said Reuben Sims, the said sum 
 of money, then he is to execute a bill of sale of the said negroes to the 
 said children, or their agent, of said Reuben Sims, free from all incum- 
 brances, which bill of sale shall contain a general warranty, and the usual 
 full covenant : and the said R. Sims agrees with the said Edward Stevens, 
 that the children, or their agent, of the said Reuben Sims, shall and will, 
 in January next, and on the execution of such bill of sale, pay unto the 
 said Edward Stevens the sum of eighteen hundred dollars, and interest 
 aforesaid. And it is further agreed between the parties aforesaid, that
 
 100 SOUTH CAEOLTNA EQUITY REPORTS. [*122 
 
 the said Edward Stevens do pay hire for the use of the aforesaid negroes 
 from the first January, 1828, until January next, when, and upon the 
 delivery and bill of sale, the possession is to be delivered to the children 
 or their agent, of the said Reuben Sims : it is agreed between the parties 
 that the children, or their agent, of the said Reuben Sims, do pay the said 
 E. Stevens for his trouble and expense for attending to a law suit, what 
 any two or three good disinterested men shall say it is worth : and it is 
 understood that the stipulations aforesaid are to apply to, and to bind the 
 heirs, executors and administrators of the respective parties ; and in case 
 of failure, the parties bind themselves, each unto the other, in the sum of 
 six thousand dollars, which they hereby consent to fix and liquidate as 
 the amount of damages to be paid by the failing party, for his non-per- 
 formance, whereof the parties have hereunto set their hands and seals, 
 the day and year aforesaid. 
 
 R. Sims, [l. s.] 
 
 Edward Stevens, [l. s.] 
 
 That in pursuance of this agreement, Stevens received $400, and has 
 had the use of the negroes, for which he was to pay hire, both which must 
 be deducted from the price agreed to be paid for the negroes. That the 
 time fixed for the performance of the agreement has not yet arrived ; and 
 that the defendant as administrator, has recently advertised for sale all 
 tlie personal property of Stevens not specifically bequeathed, including 
 ^,nr,-| these negroes, and *is about to sell the same in December (then) 
 -^ next. That the negroes are valuable, and Stevens' estate so em- 
 barrassed, that after the payment of his debts there will not remain suffi- 
 cient to discharge the $6000 which has been fixed in the agreement as 
 liquidated damages for its non-performance ; and if the defendant should 
 be permitted to sell the negroes, they may be scattered abroad, or perhaps 
 removed out of the jurisdiction of the Court, whereby a specific execution 
 of the contract, which was the main object of the paa'ties, would be pre- 
 vented, to the irreparable injury of the plaintiffs : and under these circum- 
 stances they have no adequate remedy at law. The bill prays for an 
 injunction to restrain the defendant from selling — that the defendant 
 account for the hire, and give bond and security for the delivery of the 
 negroes at the time specified in the agreement, — and that the said agree- 
 ment may be specifically performed. 
 
 On filing the bill, a motion was made before the Commissioner for an 
 injunction, which was refused. 
 
 On the 8th June, 1833, the defendant put in a general demurrer to the 
 bill, which Chancellor Johnston overruled, and at the same time granted 
 an injunction and leave to amend the bill. The amendment to the bill 
 alleges, that in January 1833, the plaintiffs, by their friend and agent, 
 Nathan Sims, offered to perform the agreement on their part, and 
 tendered to the defendant the sum stipulated to be paid, w-hich he refused 
 to accept, and refused to perform the agreement on the part of said 
 Stevens to be performed. 
 
 On the 5th August, 1833, the defendant filed his answer, in which he 
 requires proof of the execution of the agreement set out in the bill, and 
 of the payment of four hundred dollars in part performance. He answers, 
 that not Jaelieving that the plaintiffs seriously intended to prosecute their
 
 *123] COLUMBIA, JANUARY, 1835. 101 
 
 claim, he liad advertised the negroes for sale, but has since declined sell- 
 ing until the matter is adjudicated; nor has he any intention of removino- 
 them from the State. He cannot say what the main object of the agree- 
 ment was, but the estate of Stevens will be amply sufficient to pay any 
 demand the plaintiffs could recover on account of the said agreement. 
 That the time for the performance had not arrived at the filing of the bill, 
 and submits to the Court, that if the plaintiffs had performed their part 
 of the agreement, they had a plain and adequate remedy at law. That 
 if the plaintiffs could, at the time of filing their bill, have come into this 
 Court for relief, it could only have been for an ^injunction until r^,-,c), 
 the time of performance ; and that part of the case has failed by '- 
 the rejection of the application by the Commissioner: and as the case now 
 stands, [before the amended bill,] it is a bill filed in November, 1832, to 
 euforce an agreement, which, by its terms, is not to be performed until 
 the January following, without alleging that the plaintiffs have performed 
 or offered to perform the agreement on their part— in effect, asking the 
 Court to enforce an agreement against the defendant before the time spe- 
 cified in it, and at the same time to absolve the plaintiffs from the per- 
 formance on their part. And he pleads in bar the want of such an 
 allegation in the bill, and to the jurisdiction of the Court. 
 
 To the amended bill the defendant answered, that neither the said 
 Reuben Sims, nor his children, did, at the time the agreement was to be 
 performed, offer to perform their part. That he did not know there was 
 any agent for the children, or who he was; neither does he believe that 
 there was any such person legally authorized to act for them, and requires 
 proof thereof. 
 
 The cause was heard before Chancellor De Saussure, June, 1834. 
 On the trial the agreement set out in the bill was produced and the sig- 
 nature of Stevens proved. It was also proved that, in January 1833, 
 Nathan Sims, the uncle of Reuben Sims' children, and their next friend 
 in this case, with bank bills in hand sufficient for this purpose, offered to 
 pay Gordon the money due, according to the agreement, and stated that 
 if objections were made to the bills he would procure specie; to which 
 Gordon replied that he made no objection to the bills, but that he did 
 not know the amount which would be due according to the agreement, 
 and if he did, he would not accept the money. The estate of Stevens, it 
 appeared, was much embarrassed, and from the statement of the adminis- 
 trator, (which was admitted by consent,) there will remain, after the pay- 
 ment of the debts, (exclusive of these negroes, or the sum of $1800 in the 
 agreement,) about $3000 for distribution. Reuben Sims was insolvent 
 iu 1832, and is so now. It was further proved that the negroes in 
 question came by Mrs. Sims in marriage, and some of them had been 
 raised with her. They were purchased by Stevens, at sheriff's sale, as 
 the property of Reuben Sims, and after the sale he said that if the family 
 of Sims, or their friends for them, would pay him what he gave, and some 
 compensation for his trouble, they should have the negroes. The negroes 
 were proved to be worth about $4000, and their hire from January, 1828, 
 $215 per annum. 
 
 * Chancellor De Saussure. The principal questions which r:xi25 
 arise in this case, are: — First. Whether this is such an agreement ^ 
 as is binding on the representative of the estate of Edward Stevens 
 YoL. 1.— 30
 
 102 SOUTH CAROLINA EQUITY REPORTS. [*125 
 
 And whether this is a case in which the Conrt ought to give the relief prayed 
 for, by decreeing specific performance of the agreement ? At the hearing 
 of the case, it was urged, though not very strongly, that there was no 
 jurisdiction in the Court ; but in answer, it was insisted that Chancellor 
 Johnston had already decided that question, which was not appealed 
 from, and that would be sufficient. But in truth, the plaintiff would have 
 substantially the benefit of that plea, if the Court should be of opinion 
 that this is a case in which it ought not to decree a specific performance. 
 On examining the first question above stated, it appears to me, after 
 ascertaining the facts proved in the cause, that the agreement is binding 
 on the representative of Edward Stevens. The objections made were, 
 that there was no person with whom he could legally contract, and there- 
 fore the contract for the slaves was void ; and also, that the consideration 
 was too low and inadequate. It is true that Reuben Sims, with whom 
 Mr. Stevens contracted to sell and deliver the slaves in question, did not 
 contract on his own behalf, but on behalf of the children, or in other 
 words, was constituted a trustee on their behalf. Now, it is the doctrine 
 of law as well as of common sense, that if a stranger undertake to con- 
 tract for minors, his act, though it may not bind them, will bind him ; 
 for, in the very instrument of agreement he binds himself to pay the 
 stipulated sum of $1800, and. interest for the slaves, with a heavy penalty 
 if the terms are not complied with: besides, it is not true that all con- 
 tracts should be so absolutely mutual that mutual remedies should flow 
 from them. One exception is, that if an adult male make a promise of 
 marriage with a minor, and fail to perform it, he would be liable for dam- 
 ages, though she would not be liable. Others would be made under peculiar 
 circumstances. When an adult deals with a minor, knowing his minority, 
 and in contracts for propei'ty with a minor, the deeds are not void, but 
 voidable only at the option of the minor and if they be for his benefit, 
 will be sustained. I think, therefore, that Mr. Edward Stevens and his 
 representatives were bound by this contract. As to the inadequacy of 
 the consideration, it is true that the contract was for $1800, and the 
 slaves were proved to be worth $4000. If this had been an ordinary case 
 *1 £)/«-] of persons of mature age dealing *with each other at arm's length, 
 -^ this disproportion of price to value would not have been of itself 
 a sufficient ground to put aside the contract without some circumstance of 
 fraud, imposition, or utter ignorance. But none of these things have oc- 
 curred; there is a real and valuable consideration, and no allegation of 
 fraud or imposition. Mr. Stevens knew he had obtained a great bargain 
 at the sheriffs sale, at the expense of a large family, and seems to have 
 been induced by kind feelings to let the children of the family have the 
 slaves at the same price he had given, and who were to pay him in this 
 act of beneficence. The objection by his administrator seems to me to be 
 unfounded. Another objection was made, that the terms were not com- 
 plied with, and the money not paid at the stipulated time. In transac- 
 tions of this kind it is not understood that time is of the essence of the 
 contract. To be sure, great and long-continued non-performance will in 
 some instances, in which circumstances are greatly changed, be construed 
 into an abandonment of the bargain. This, however, is rare, and takes 
 place only when the conduct of the parties indicates the intention to 
 abandon the contract, or the delays have produced great injury to the one
 
 *126] COLUMBIA, JANUARY, 1835. 103 
 
 seeking: to get riJ of tlie contract. In the case we arc considering, tliere 
 is no evidence of any design on the part of the minors, or their friend and 
 trustee, Mr. Sims, to relinquish the contract — on tlie contrary, an effort 
 was made to complete the i)aymcnt to the administration of Mr. Stevens, 
 which, if it did not absolutely amount to a formal tender of the purchase 
 money according to strict rule, was so substantially; and utterly takes 
 away all pretence of the contract being abandoned, or so grossly neglected 
 for an immoderate length of time, as ought to preclude the enforcement 
 of it now by the administrator. The offer to pay the money was refused. 
 
 The principal question in the cause, and one involving real difficulty, 
 is whether it is legal and proper to decree the specific performance of an 
 agreement for the sale of slaves. It is not to be questioned that the 
 general doctrine of the Court of Equity is, that specific performance will 
 not generally be decreed of contracts of personal goods and chattels, 
 though it will as to real estate. The reason is, that the former are of a 
 perishable and transient nature, and not always capable of being decreed 
 in specie as land may ; and also, because compensation in damages may, 
 and generally will be, an adequate and proper remedy. There aie, how- 
 ever, exceptions to the rule, when the personal property is of a peculiar 
 *character, and where a peculiar value is placed upon particular r^itio'T 
 articles, such as pictures, vases, arms, amorial-bearings — ft'om •- 
 feelings of affection, family attachment, or other considerations of that 
 kind. It has long been a question, how far the rule or the exception 
 should be applicable to the cases of contracts for slaves. All the reasons 
 which apply to the exception, apply to the case of slaves; not, perhaps, 
 broadly and unqualifiedly, but to domestic servants brought up in a 
 family, and who became, as in this case, the subjects of contract with the 
 family who raised them. In many of the contracts for slaves, compensa- 
 tion in damages would not be a proper or adequate compensation. In 
 most cases, slaves are purchased with a view to the settlement and culti- 
 vation of land ; and if a disappointment in the purchase of the slaves 
 takes place, the land may be uncultivated and a burden. The Courts 
 have been approaching to this view of the subject, and I understand that 
 the Court of Appeals has leaned favorably to it. It is time that the 
 doctrine should be settled, and I shall therefore decree, according to my 
 judgment, in favor of the specific execution of this contract, in order to 
 have the question distinctly carried up to the Court of Appeals for its 
 final judgment. 
 
 Other questions were made at the hearing. By the contract for the 
 negroes between Stevens and Sims, on behalf of the minor children, it 
 was agreed by the said Stevens, to sell to the children, or their agent, all 
 that family of negroes (now in question) for the sum of $1800, and 
 interest from the time he bought them at sheriff's sale, (September, I82T,) 
 and that he, Edward Stevens, would in January next, after date of the 
 agreement, (January 11, 1832,) on receiving from the children, or their 
 agent, Reuben Sims, the said sum of money, ($1800,) would execute a 
 bill of sale of the said slaves, to the said children, or their agent, of the 
 said Reuben Sims, free from incumbrances, and with a clause of war- 
 ranty, whereupon the said sum of $1800 was to be paid, with interest, to 
 the said Edward Stevens. And it was further agreed, that the said 
 Edward Stevens should pay hire for the use of the said slaves, from the
 
 104 SOUTH CAROLINA EQUITY REPORTS. [*127 
 
 first of January, 1828, until the first of January then next ensuing, 
 (January, 1833,) when the possession of the slaves was to be delivered 
 to the said children, or their agent. It was also agreed, that the chil- 
 dren, or their agent, should pay to Edward Stevens, for his trouble and 
 expense for attending to a law suit, what two or three good disinterested 
 ^,j^o-] men shall say it is worth. The parties also *bound themselves, 
 J and their heirs, executors and administrators, respectively, in the 
 sum of six thousand dollars, as the amount of damages for the faithful 
 performance of the stipulations of the agreement. These stipulations 
 are sufficiently distinct and precise. Yet it was argued for defendant, 
 that if interest should be allowed on the sum of $1800, paid by Mr. 
 Stevens, and hire allowed for the work of the slaves during the time they 
 were held by him, that it would be greatly to the disadvantage of the 
 estate of Stevens, as the usual rate of hire would greatly exceed the 
 interest. If this should operate hardly on Mr. Stevens' estate, it would 
 be the effect of his own express agreement. Such are the terms of his 
 own agreement. It might be inexplicable why he entered into such 
 stipulations, unless we understand what I think all the circumstances 
 warrant, and even require us to believe, which is, that Mr. Stevens, 
 throughout the whole transaction, acted as the friend of the children, and 
 though a bona fide purchaser of the slaves at sheriff's sale at a low price, 
 he never meant to make a profit on the purchase, but to let them have 
 all the profits of the hire and labor, provided he was reimbursed his 
 advance of $1800, with interest. This, I think, the true clue to the 
 whole transaction, in which there was no impropriety towards any, and 
 great kindness and good-will to these children. 
 
 It is therefore ordered and decreed, that the plaintiffs do pay over to 
 the defendant, the administrator of Edward Stevens, the sum of $1800, 
 with interest, according to the agreement ; and that the said adminis- 
 trator do convey the said slaves in cpiestion, and their increase, to the 
 said children, mentioned in the pleadings, or to their agent, and account 
 or their hire and labor according to the terras of the agreement. But 
 under the circumstances, the rate of hire should be fixed at a very 
 moderate rate. And that the Commissioner to whom the case is referred 
 to examine and make up the account for hire, do also examine and report 
 what compensation ought to be allowed to Mr. Stevens' estate for his 
 services in the law suit mentioned in the agreement, of which there is no 
 proof before the Court. Costs, in such a case as this, to be paid out of 
 the property in question. 
 
 The defendant appealed on the following grounds : 
 
 1. That the bill was prematurely filed : the injunction part having 
 failed, there was no ground on which it could be restrained, and the de- 
 murrer should have been sustained. 
 
 2. The amendment to the bill ought not to have been allowed : 
 it Avas too late, but if allowed, it should have been on terms. 
 
 3. The agreement was not proved as required by the answer, there 
 being no proof that Reuben Sims executed it. 
 
 4. There w^as no proof that Reuben Sims, his children, or their agent, 
 offered to perform their part of the agreement at the time it was to have 
 been performed, or at any time since : the agreement requires perform- 
 ance by the children or their agent, and there was no proof of any 
 
 *129]
 
 *129] COLUMBIA, JANUARY, 1835. 105 
 
 such agency — the unautliorized acts of Xathan Sims were not such au 
 offer to perform as required performance on the part of the defendant. 
 
 5. The positive answer of tlie defendant, that there was no olVer to 
 perform by the plaiiitiffs or their agent, is conclusive against them, the 
 proof as to the acts of Nathan Sims being vague and indefinite. 
 
 6. That there is a phxin and adequate remedy at law, and this Court 
 has therefore no jurisdiction. 
 
 7. That the consideration is grossly inadequate — the agreement is 
 unequal, unreasonable, unfair, unjust and unconscionable. 
 
 8. There is no party responsible to the estate of the testator — no re- 
 ciprocity in the contract — no mutuality. — Sims being insolvent, and his 
 children minors, they should not only be willing, but able to perform the 
 contract. 
 
 9. Reuben Sims is insolvent — the contract uncertain and executory, 
 and no part performed, — no injury can therefore result to the plaintiffs. 
 
 10. That the decree is in every respect contrary to equity and evi- 
 dence. 
 
 Herndon, for the defendant, argued that after the motion for injunction 
 had failed, the bill being filed before the time fixed for the performance of 
 the agreement, was stripped of all equity. After the time fixed for per- 
 formance, and on the case being called for trial, leave to amend was 
 granted, by inserting an important allegation; it was in effect a new bill, 
 for relief could not have been had under the first bill at the time it was 
 filed, and with the statement contained in it. Under such circumstances, 
 to allow the amendment was improper ; or if allowed, the costs of the 
 case up to that time, should have been paid for the leave. The agree- 
 ment was not proved, and the answer requires proof of it. Stevens' 
 *signature was proved, but not Sims', and such proof was r^ion 
 necessary. New. on Cont. 161. On the fourth and fifth grounds, •- 
 he contended that there was not sufficient proof of an offer to perform on 
 the part of the plaintiffs or their agent. There was no evidence that 
 Nathan Sims was acting for the children, and unless he came with au- 
 thority from them, the defendant would not have been justified in deliv- 
 ering the negroes to him. But at most, conceding that he was autliorized 
 so to act, it was a mere loose conversation ; to make it effectual as a 
 tendei', the money should have been deposited with the Commissioner. 
 The defendant, however, denies that such an offer was made, and the 
 answer must be evidence, unless contradicted by two witnesses, which it 
 is not. It is incumbent on the plaintiffs to show that they had done all 
 they could do. Mad. Chan. 331. 
 
 But there is a plain remedy at law by action on this agreement, in 
 which it seems the damages are liquidated, and adequate relief could 
 thus be had. Can a bill be maintained for the specific i)erformance of a 
 contract for the sale of negroes ? The rule clearly is, that such a bill 
 cannot be sustained for personal chattels in general; and if the case of 
 an agreement for the sale of slaves is to constitute an exception, it will 
 be now for the first time made. "The general rule is, that the Court 
 will not direct the specific delivery of a chattel, because the party has 
 plain and adequate remedy at law." Nott, J. in Lining r. (Jeddes, 1 
 M'C. Ch. 308 ; Farley v. Farley, 1 M'C. Ch. 50G, decides the point that
 
 *131] 
 
 106 SOUTH CAROLINA EQUITY REPORTS. [*130 
 
 a bill will not lie to compel the delivery of slaves. There is nothing 
 peculiar in the circumstances of this case, or alleged in the bill, to induce 
 the Court to exercise its extraordinary powers in compelling specific 
 performance — nothing to prevent plain and adequate relief at law. New. 
 on Contr. 313. 
 
 On the ground of inadequacy of price, he insisted that there was a 
 distinction between executed and executory contracts — that while mere 
 inadequacy of price would not be a ground to set aside the former, it 
 might prevent the Court from interposing to enforce the latter ; and that 
 to entitle a party to specific performance, the contract must be fair, just, 
 and reasonable. Osgood v. Franklin, 2 John. Ch. Rep. 23 ; 1 Mad. 
 Chan. 323, 407, 425 : 1 Bro. Ch. Ca. 326 ; 10 Yes. 292 ; Cas. Temp. 
 Talb. 234 ; Mewl, on Contr. 69 ; Cabeen v. Gordon, 1 Hill, Ch. 54 ; 
 Butler V. Haskell, 4 Eq. Rep. 673. 
 
 *According to the evidence, these negroes were worth at the 
 time of the contract $4000, and their yearly hire from 1828 to the 
 time of performance $275, making for their value and hire $5375. The 
 price agreed to be paid with interest, to the same time, is $2472, leaving 
 $2903 — a clear gain to the plaintiffs, and actual loss to the defendant. 
 Besides, the hire so far exceeds the interest, that if the negroes remain 
 much longer in his possession, the plaintiffs will have nothing to pay. 
 Will a Court of Equity enforce such a contract ? 
 
 The want of mutuality should prevent its enforcement. Sims is insol- 
 vent and his children minors, and if they were not, he could not compel 
 them to perform, or make any contract which would be obligatory on 
 them. They are not legally bound by this agreement. Will the Court 
 enforce the execution of a contract where but one of the parties is bound ? 
 In any event, before performance was decreed, they should have been 
 required to put down the money. 1 Mad. Ch. 423 ; 1 Mad. Rep. 11 ; 
 1 M'C. Ch. 38. 
 
 Lastly, the uncertainty of the agreement is an objection — the amount 
 to be paid to Stevens for his services is uncertain, and as yet entirely 
 unknown. Mad. Ch. 426; New. on Cont. 157- 
 
 J. J. Caldwell & A. W. Thomson, for the plaintiffs. They insisted 
 tliat the agreement was sufficiently proved. There was proof of Stevens' 
 signature, the ]iarty against whom it w^as to be enforced, and Sims is 
 a party plaintiff in the bill which he has sworn to ; besides, no such 
 objection was urged on the trial when the agreement was regarded as 
 being in evidence, on full proof of its execution. The important question 
 in the case is as to the jurisdiction. The bill was not filed prematurely. 
 The negroes were about to be sold ; and the bill was filed on the familiar 
 principle that a Court of Equity will interpose to secure the forthcoming 
 of property to a party not entitled to the present possession, but in re- 
 mainder. This is a proper ground of equity jurisdiction, and the refusal 
 of the Commissioner to grant the injunction, does not destroy the equity. 
 The case then, being properly in Court for one purpose, may be retained 
 for every purpose ; the Court having possession of the case, will do com- 
 plete and ample justice, and not send the parties to another tribunal. 
 Rathbone v. Warren, 10 John. 596; King r. Baldwin, 17 John. Rep. 
 384. The subsequent amendment to the bill was properly allowed.
 
 *132] COLUMBIA, JANUARY, 1835. 107 
 
 ♦Leave to amend is a matter in tlie discretion of the Court, and 
 that discretion has been properly exercised to subserve the ends ^ 
 of justice. 
 
 The general rule, that a bill will not lie to enforce the delivery of spe- 
 cific chattels, proceeds on the ground that adequate relief can be had at 
 law by way of damages. But in this case, such relief cannot be had, for 
 it is at least doubtful whether the estate would be sufficient for that pur- 
 pose. Exceptions, however, have been allowed to the rule, on account 
 of some peculiar value attached to some chattels, where compensation 
 adequate to the loss could not be had in damages ; as in the case of the 
 Pusci/ horn, and family paintings, &c. The same reason applies. These 
 are family negroes, the most of them raised with the plaintifls — their quali- 
 ties were known, and feelings of kindness and attachment had grown up 
 between them. Will the Court exercise its sensibilities in favor of a 
 painting or a Pusey horn, and withhold them in the case of a human being ? 
 From the principles laid down in all the cases on this subject, it appears, 
 that where damages would be no adequate compensation, or the injury 
 would be irreparable without it, specific performance will be decreed. In 
 Howard v. Hopkins, 2 Atk. 3tl, the specific performance of articles for 
 the purchase of an estate was decreed, although a penalty was fixed for 
 non-performance. See also Goring v. Kash, 3 Atk. 18G-T. Whatever 
 may be the doctrine of the English Courts, in this State, bills have been 
 sustained for the delivery of slaves. Wamburzee v. Kennedy, 4 Eq. Rep. 
 414 ; Brown v. Gilliland, .3 Eq. Rep. 541 ; Chick v. Smith, Harp. Eq. 
 Rep. 298, And specific performance of contracts for the sale of slaves, 
 has been decreed in Kentucky and North Carolina. 4 Bibb, 186 ; 2 Bibb, 
 410 ; 2 Murphy, 14. Farley v. Farley, is not directly opposed to such a bill 
 being sustained. The bill in that case was dismissed because the proper 
 parties were not before the Court. It ought, however, to be reviewed. 
 
 The want of mutuality is no objection. There is the same want of it in 
 every contract between an adult and a minor, where one is bound and the 
 other not; and as to Sims' insolvency, the defendant has the security in 
 his own hands — the Court will take care that the money shall be paid. 
 
 As to the inadequacy of price, it is not pretended that there was any 
 fraud in the transaction. Stevens was certainly not overreached ; but, 
 actuated by benevolent motives, consented to forego a *specula- r^ioo 
 tion on being reimbursed what he had paid. Nor is there any ^ 
 thing in the objection, that there was no offer to perform on the ])art of 
 the plaintiff's. Nathan Sims was their next friend in the bill ; he was 
 notoriously acting on their behalf — the answer in this part is not distinct, 
 and the evidence is satisfactory. 
 
 Harper, J. I shall first consider that which perhaps constitutes the 
 only diEBcult or material subject of investigation in the case — the ques- 
 tion, whether the bill for the specific performance of this contract can be 
 maintained in this Court, which constitutes the sixth ground of the appeal. 
 The cases of Pusey v. Pusey, 1 Vern. 273 ; of Duke of Somerset v. Cook- 
 son, 3 Pr. Wms. 390 ; Buxton v. Lister, 3 Atk. 383 ; Fells i\ Head, 3 
 Ves. 10; Loyd v. Loaring, 6 Ves. 118; Lowther r. Lowther, 13 Ves. 
 95 ; and Macclesfield v. Davis, 3 Yes. & B. Ifi, i)ut it out of the question 
 that a bill will lie in many cases for the specific delivery of a chattel.
 
 *134] 
 
 108 SOUTH CAROLINA EQUITY REPORTS. [*133 
 
 It seems to have been a matter of some uncertainty in our own deci- 
 sions, whether a bill may be maintained for the specific delivery of a slave, 
 and in what cases ; and it is desirable that we should come to some specific 
 conclusion on the subject. The general principle on which the decisions go 
 is, that where damages will not be an adequate compensation, the party 
 is not entitled to relief in equity. But the principle might perhaps be 
 more broadly stated. The method of relief on contracts in equity, is to 
 carry them into specific execution, and it is laid down in the text of Fon- 
 blanque, B. 1, Ch. iii. sec. 1, that "where the contract is good at law, 
 equity will carry it into execution." The commentator on Fonblanque, 
 ib. n. c. observes, "this proposition is too generally stated; for though 
 equity will enforce the specific performance of fair and reasonable con- 
 tracts, where the party wants the thing in specie and cannot have it in any 
 other way ; yet, if the breach of the contract can be, or was intended to 
 be compensated in damages, Courts of Equity will not interpose." In 
 general, where the contract related to personalty, the party was not sup- 
 posed to want a specific execution, and no doubt very much for the reason 
 assigned in the same chapter, " that chattels were of little value at the 
 common law, when personal property was but small." 
 
 The principle may be illustrated by the cases in which specific per- 
 formances of such contracts has been refused. In Cud v. Rutter, 1 Pr. Wms. 
 510, where the contract was for the transfer of stock, *the reason- 
 ing of the Chancellor was, "that a Court of Equity ought not to 
 execute any of these agreements, but to leave them to law where the party 
 is to recover damages, and with the money may, if he pleases, buy the 
 quantity of stock agreed to be transferred to him ; for there can be no 
 difference between one man's stock and another's. It is true, one parcel 
 of land may vary from and be more commodious, pleasant or convenient 
 than another parcel of land, but £1000 South Sea Stock, whether it be 
 A, B, or C's, is the same thing, and in no sort variant." Yet in Colt v. 
 Netterville, 2 Pr, Wms. 304, where the bill was to have a transfer of 
 stock which was rising rapidly in value, the Chancellor seemed to doubt 
 whether justice did not require the transfer to be decreed. In Errington 
 V. Aynesly, 2 Br. C. C. 343, the Master of the Rolls, refusing specific per- 
 formance of an agreement to build a bridge, says, " there is no case of a 
 specific performance of an agreement to build a house, because, if A will 
 not do it, B may. A specific performance is only decreed where the party 
 wants the thing in specie, and cannot have it in any other way." 
 
 In the cases of the Pusey horn, of the antique altar-piece which had 
 been long in the family, of the ornamented silver tobacco-box, the property 
 of a club, and some others, it was only the feelings and imagination of the 
 owners, giving the articles a peculiar value to them, which a jury, fixing 
 the market value, could not be supposed to estimate, that was held to 
 entitle them to relief. In Fells v. Read, the Chancellor remarks in rela- 
 tion to those cases : " It was not to be cast to the estimation of people 
 who have not those feelings. In all cases where the object of the suit is 
 not liable to a compensation by damages, it would be strange if the law of 
 this country did not afford any remedy. It would be great injustice if an 
 individual cannot have his property without being liable to the estimate 
 of people who have not his feelings upon it." In Buxton v. Lister, a dif-
 
 *134] COLUMBIA, JANUARY, 1835. 109 
 
 ferent class of cases is considered. The case of Taylor v. Neville, is 
 referred to : 
 
 " That was for a performance of articles for sale of eij^lit hundred tons 
 of iron, to be paid by instalments, and a specific performance was decreed. 
 
 " There are several circumstances which may concur. 
 
 "A man may contract for the purchase of a great quantity of timber, 
 as a ship carpenter, by reason of the vicinity of the timber. 
 
 " On the part of the seller, suppose a man wants to clear his land, r=|ci oc 
 in order to turn it to a particular sort of husbandry, here nothing L 
 can answer the justice of the case, but the performance of the contract in 
 specie. 
 
 "In the case of John, Duke of Buckinghamshire i'. Ward, a l)ill was 
 brought for the specific performance of a lease relating to Alum Works 
 and the trade thereof, which would be greatly damaged if the covenant 
 was not performed on the part of Ward. 
 
 "The covenants lay there in damages, and yet the Court considered, if 
 they did not make such a decree, an action afterwards would not answer 
 the justice of the case." 
 
 The general principle is, that the Court will execute any fair and rea- 
 sonable agreement, unless it appears that full justice may be done by a 
 compensation in damages. Now, if these numerous and uncontradicted 
 decisions are evidence of the law, then it is certain that there may be 
 some cases in which a bill will lie for the specific delivery of a slave. 
 Suppose the case, which I have known, of a slave accustomed to wait on 
 a deaf and dumb person, and from long habit able to communicate ideas 
 with him. This would add nothing to his market value, though render- 
 ing him inestimable to his owner. Many similar cases may be conceived. 
 A slave may have been the nurse of her master's children, or may have 
 saved the life of one of his master's family. In such cases, what mock- 
 ery would it be to tell the master that he might have full compensation 
 by damages for the loss of the slave ? And unless there be something 
 very perverse in the disposition of the master or the slave, in every 
 instance where a slave has been reared in a family, there exists a mutual 
 attachment between the members of it and himself. The tie of master 
 and slave is one of the most intimate relations of society. In every age 
 the distinction has been recognized between the slave brought up in his 
 master's household and one casually acquired. And it may be said, that 
 such an one is actually of more value to the master than he would be to 
 a stranger. The owner better understands his qualities, and what he^ is 
 capable of performing, and the slave will be more likely to serve with 
 cheerfulness and fidelity. These considerations are greatly strengthened 
 by that of humanity to the slave himself. Are not such feelings worthy 
 of more regard than the taste which would covet an antique altar-piece 
 or a picture of Titian ? We have the principle from the English deci- 
 sions, but an infinitely stronger case in which to apply it. 
 
 In the case before us, it appears that the slaves in question were r*]L3g 
 brought up in the family of the plaintiffs, and according to the 
 view I have taken, this makes the case in which a bill may be maintained. 
 But it is argued that this may lead to very extensive consequences. 
 Though not strictly born and reared in the master's family, yet there may 
 be the same attachment and the same circumstances to give a peculiar
 
 110 SOUTH CAROLINA EQUITY REPORTS. [*136 
 
 valne, from a shorter ownership. Slaves are moral and intellectual 
 beings, having qualities infinitely diversified, and in every case where 
 specific slaves are contracted for, it might be said that the contract was 
 made with a view to those peculiar qualities. But I am not to shrink 
 from enforcing a well-settled principle of law, because it may lead to 
 unforeseen consequences. I believe these consequences will follow, and I 
 am prepared to lay it down as a general rule, that a bill tvill lie for the 
 specific delivery of slaves, as for the specific performance of a contract 
 for the sale of land ; and in saying this, I believe I am giving effect to the 
 law, according to its true meaning. 
 
 We have seen that the principle is, that equity will enforce contracts 
 specifically, unless it appear that there may be full compensation in dam- 
 ages. But this cannot appear in the case of slaves, any more than in a 
 contract for the sale of land. 
 
 In case of the purchase of land, it is presumed that the party was in- 
 duced by some particular liking, or some convenience in the particular 
 land. But there is as great, and perhaps greater reason for supposing 
 that a purchaser of specific slaves has a view to their peculiar qualities. 
 
 The objection at common law, that chattels were of little value, does 
 not apply to these. They are a property no less permanent and valuable 
 than the land itself. It is said in Buxton v. Lister, "As to cases of con- 
 tracts for purchase of lands, or things that relate to realities, those are of 
 a permanent nature, and if a person agrees to purchase them, it is on a 
 particular liking to the land, and is quite a different thing from matters 
 in the way of trade." Does not this apply equally to slaves ? Can you 
 say, as in the cases which relate to stock, that one man's slave is as good 
 as another man's slave ? It may chance to be so ; as it might happen 
 that a man might with the damages recovered for a breach of contract to 
 sell land, buy other land equally convenient and agreeable ; but this is 
 not generally so, nor so to be presumed. The fair presumption is, that 
 when a man contracts for particular slaves, he wants to have them in 
 specie. 
 
 *1R71 *With us slaves are commonly employed on land. Suppose a 
 -I man at the same time to contract for land and the slaves employed 
 upon it; it would be nugatory, and defeat his object altogether, to give 
 him the land, if he could not have the slaves. The cases are so many 
 and various in which justice could only be done by a specific delivery, 
 that it is best to have a general and certain rule. It is on such views I 
 suppose, that the same doctrine has been established in other States where 
 slavery exists. Cases to this effect were quoted from Kentucky and North 
 Carolina— 4 Bibb, 186 ; 2 Bibb, 410 ; 2 Murphy, 74. 
 
 There may be exceptions to the rule. If it appeared that the pur- 
 chaser contracted for the slaves as merchandise to sell again, this, ac- 
 cording to the expression in Buxton v. Lister, would be merely a matter 
 in the w^ay of trade, and in such case it is certain that complete justice 
 might be done by a compensation in damages. But the general rule 
 must be as I have stated. 
 
 This dispenses with the necessity of considering some of the other 
 grounds on which the jurisdiction of the Court was attempted to be sup- 
 ported. The other grounds of appeal, as I have before observed, will 
 require but slight notice.
 
 *137] COLUMBIA, JANUARY, 1835. HI 
 
 The first and second may be considered together. They arc founded 
 upon a misconception of the practice of equity, arguing from anahjgy to 
 proceedings at law. If a bill appear on the face of it to be prematurely 
 tiled, and advantage be taken of this by demurrer, the demurrer will be 
 fatal. If there be no demurrer, and the case be brought to a hearing 
 before the time fixed for the iierforraance of the contract, there might be 
 reason to contend that the bill should be dismissed. But if no advan- 
 tage be taken by demurrer, and it be not brought to a hearing till the 
 proper time of performance has elapsed, the Court would not do so 
 nugatory a thing as to dismiss the bill in order to compel the party im- 
 mediately to file another bill for the very same purpose. Equity can do 
 full justice to the parties by preventing surprise and imposing costs on 
 the parties by whose fault they were prematurely and unnecessarily in- 
 curred. But this bill was not prematurely filed with respect to the ob- 
 ject which the parties then had in view — the preventing of the sale of 
 the slaves. Coming for this purpose, as the time of performance was on the 
 eve of arriving, it was proper that all the matters in controversy should 
 be brought forward to prevent multiplicity of litigation. The leave to 
 amend was matter of discretion, and we think it was properly exercised. 
 
 *There is nothing in the third ground as respects either the r:ciqo 
 law or the fact : the agreement was received in evidence, without ^ 
 any objection (so far as appears from the report of the Judge) to the 
 proof of its execution. No doubt seems to have been seriously enter- 
 tained of the fact of its execution by Reuben Sims, and if there were any 
 such casual omission, as is supposed, we should certainly send the cause 
 back that the defect might be supplied. 
 
 The fourth and fifth grounds may be taken together. The objection 
 seems to be, that it does not appear that Nathan Sims, who is alleged to 
 have offered payment of the money, was the authorized agent of the 
 plaintiffs. There was no need of any such proof. Any one who would 
 offer to pay the money in their behalf was agent enough, and they might 
 adopt his act. Besides, most of the plaintiffs were infants, incapable of 
 appointing an agent, and no other agent than such a voluntary one could 
 have been contemplated by the agreement. 
 
 With respect to the fact of the money having been offered, it was mat- 
 ter of evidence for the Chancellor. Even at law, if a debtor has the 
 money ready, and informs his creditor that he is ready to pay him, and 
 the creditor declares beforehand that he will not receive it, there is no 
 need to prove a formal tender. It is argued that the answer denies the 
 offer, and that it is only proved (and that imperfectly) by the testimony 
 of a single witness, Boyce. I think the answer is equivocal, and, so far 
 from contradicting, supports the testimony of Boyce. The defendant 
 denies "that the said lieuben Sims and his children, or either of them, 
 did, at the time that the said contract was to be performed, offer to per- 
 form their part of the same, according to the promise thereof. This de- 
 fendant not knowing that there ivas any agent of the said childi-en, or 
 who he ivas, neither does he believe that there was any such person 
 legally to act for the said children, d;c.^' He plainly appears to^ rest 
 his denial that Reuben Sims, or his children, offered performance, o'n his 
 own conclusion that there was no person legally authorized to offer per- 
 formance on their behalf. Such a method of answering cannot be too
 
 112 SOUTH CAROLINA EQUITY REPORTS. [*138 
 
 strongly censured. It is generally an attempt to gain the benefit of false- 
 hood, without being subject to the direct charge of it. 
 
 With respect to the seventh ground, the Chancellor's reasoning is en- 
 tirely satisfactory. The Court refuses to enforce the specific performance 
 
 * 
 
 139] 
 
 of agreements, on the grounds of inadequacy of consideration,* 
 
 because it infers that there must be hardship, injustice or mis- 
 take. But if the testator, having purchased the property of plaintiffs' 
 father, at a low price, chooses out of humanity to give them the benefit 
 of it, upon being reimbursed what he has paid with interest, the whole 
 doctrine is inapplicable. As the hire stipulated to be paid after the 1st 
 of January, 1828, exceeds the interest to be received by the estate of 
 Stevens, in order to make out an enormous inadequacy, calculations were 
 entered into for the purpose of showing that if the period of perform- 
 ance should be deferred for some time, the debt to Stevens' estate will be 
 extinguished by that excess ; so that, in fact, the estate of Stevens will 
 receive nothing. But this also is founded in misconception. If the 
 estate pays hire, it receives the service of the slaves, and we must sup- 
 pose the one to be equivalent to the other. Then, if this be so, thdugh 
 the debt should be entirely extinguished, all that we can say is, that it 
 has been paid in the services of slaves, instead of money. If the services 
 be in fact equivalent to the hire, the estate will be in no worse condition 
 than if the contract had been performed at the day. If the defendants 
 be entitled to the performance of the contract, they have been deprived 
 of the services of the slaves from that day. 
 
 Under the eighth ground, the want of mutuality in the contract is 
 relied on ; that is to say, that defendant's testator could not have enforced 
 performance against the plaintiffs, who were no parties to the contract. 
 There can be no doubt but that Reuben Sims and the testator were bound 
 at law. In Lowther v. Carrill, 1 Vern. 521, it was held to be sufficient 
 if the writing be signed by the party, who sought to be charged by the 
 bill, and such is said to have been the case of Hatton v. Grey, 2 Ch. Ca. 
 164. This was denied, however, by Lord Redesdale, in Lawrenson v. 
 Butler, 1 Sch. & Lef. 20, and in Shannon v. Bradstreet, lb. 58, in which 
 he holds that both parties must be bound, or the Court will not enforce 
 the performance. But he makes the exception expressly in the case of 
 infants. " It is the peculiar privilege of infants for their protection, that 
 though they are not bound, yet those who enter into contracts with them 
 shall be bound, if it be prejudicial to the infant to rescind the contract." 
 See also Campbell v. Leach, Amb. 147, quoting Holt v. Ward, Fitz. 
 275. Most of the plaintiffs were infants at the time of the contract, and 
 under the exception entitled to performance. But the contract is one 
 and entire, and must be performed entirely or not at all. 
 *1401 *The ninth ground is also misconceived. As between E,euben 
 -^ Sims and defendant's testator the remedy was only at law, and at 
 law there would be no question of solvency or insolvency, with reference 
 to the validity of the contract. In equity, there have been some cases 
 in which the Court has refused to enforce specific performance of a con- 
 tract for a lease, on the ground of the tenant's insolvency. Buckland v. 
 Hall, 8 Yes. 92; O'Herlihy v. Hedges, 1 Sch. & Lef. 123. This was 
 on the ground that the insolvency of the tenant might endanger the future 
 payments of rent ; and more especially where money was to be laid out
 
 *140] COLUMBIA, JANUARY, 1835. 113 
 
 by the tenant in repairs or improvements. But it is distinguished from 
 the case of a contract to purchase, because, in such case, it is said, the 
 bill tenders the purchase money, and the Court will not decree a title to 
 be made until the purchase money is paid, or secured to be paid The 
 insolvency of the vendee is therefore immaterial. But in this case, by the 
 terras of the contract, the slaves are not to be transferred till the money 
 is paid, and if it were not so, the Court would take care that it should be 
 paid or secured. 
 
 With respect to the uncertainty which is supposed to render the con- 
 tract void, it may be sufficient to observe that there is no uncertainty in 
 the contract in which the plaintiffs are concerned. The terms on which 
 the slaves are to be transferred to them, are perfectly certain ; but there 
 is a distinct stipulation, entirely independent of this contract, by which 
 Reuben Sims covenants " to pay the said E. Stevens for his trouble and 
 expense for attending to a law suit, what any two or three good disin- 
 terested men shall say it is worth." This is the personal undertaking of 
 Reuben Sims, on which the remedy could only be at law. No doubt 
 separate contracts may be contained in the same instrument, and this 
 may be so regarded. Certainly it is no part of the contract'with the plain- 
 tiS's. The Chancellor's decree is affirmed. 
 
 Johnson and O'Neall, Js., concurred. 
 
 Alexander Davidson, Surviving Executor of George Neely, v. John 
 Ruff, Administrator, and others. 
 
 Testator directed his estate to be sold and the interest of the fund arising thence 
 to be paid to his son S. annually, and the principal to be equally divided amongst 
 the lawful issue of S. as they came of age or married; "and in default of such 
 heirs to go to his next of kin to be equally divided amongst them at the death of 
 S.; S. died Y?ithout issue. — Ilchl, 1. That the limitation over to the next of kin, 
 ■was not too remote: 2. That S. was entitled to the interest on the whole sum 
 annually during his life; and his administrator to the interest which accrued in 
 the year he died, up to the time of his death. [*141] 
 
 George Neely died, leaving of force his last will and testament, in 
 which, after giving his whole estate to his wife for life, he *deviscs r^^^j 
 and bequeaths as follows : " It is my will and desire that at the 
 death of ray said wife, that all the above-naraed property, (or what re- 
 mains of the same) shall be sold, and the interest arising from the amount 
 of the said sale shall be annually, or as soon as it can be collected, paid 
 to my said son Samuel, and the principal or amount of said sale to remain 
 in the hands or care of my executors hereinafter named, to be equally 
 divided amongst the lawful issue of my aforesaid son Samuel, (if any,) as 
 they come to the age of twenty-one or marry, and in default of such heirs, 
 to go to his next of kin, to be eqally divided amongst them at the expira- 
 tion or death of my aforesaid son, Samuel Neely." 
 
 On the death of the widow, the executors sold the property according 
 to the directions of the will, and annually, up to January, 1^33, paid to 
 Samuel Neely the interest on the amount of the sale. Samuel Neely
 
 *142] 
 
 114 SOUTH CAROLINA EQUITY REPORTS. [*141 
 
 died in September, 1833, unmarried, without issue and intestate, and the 
 defendant. Ruff, administered on his estate. 
 
 This was a bill of interpleader, filed by the plaintiff, as survivinj^ 
 executor of George Neely, stating that soon after the death of Samuel, 
 he was notified by Mary Neely and Margaret Brown, that they claimed 
 the funds in his hands as next of kin to Samuel Neely, the one as his 
 paternal, and the other, as his maternal aunt; and a like notice from the 
 defendant, Ruff, claiming the whole as administrator. And the bill 
 prays, that these claimants be brought before the Court, and their rights 
 adjudicated. 
 
 Chancellor Johnston. The defendant. Ruff, contends — 
 
 1. That he is entitled to the whole capital and interest left at his intes- 
 tate's death. If he fail here, he insists — 
 
 2. That he is entitled to the interest of the entire year in which 
 Samuel Neely died. Failing in this, he claims — 
 
 3. The interest of that year up to the time Samuel Neely died. 
 
 His claim to the whole capital and interest, is founded on an assump- 
 tion that the limitation to the next of kin to Samuel Neely is too remote. 
 Assuming this, he insists that the bequest reverted to the testator. 
 
 *The Court of Appeals has, to be sure, decided that there may 
 be a reverter of personalty. (Geiger v. Brown.) But if this 
 bequest did revert, it became distributable as intestate property. The 
 right to distribution vested in the testator's widow and son, and this 
 defendant, as the son's administrator, could receive only two-thirds of it 
 To recover the widow's third, administration to her must be taken out. 
 
 But I am satisfied that the limitation is good. It is not necessary to 
 refer to authorities for the doctrine that a limitation is valid if it is to 
 take effect at the termination of existing lives or a fixed period beyond 
 them, which it is unimportant to mention here. Although the limitation 
 is upon failure of issue, to whom there is a prior bequest ; yet, if there be 
 expressions showing that the testator did not mean an indefinite failure 
 of issue, but a failure within the period I have mentioned, or if that be 
 necessarily inferable from the period fixed for the limitation to take 
 efi"ect, the limitation is not too remote. 
 
 Here the previous bequest is to the lawful issue of Samuel Neely ; in 
 default of such issue, then to his next of kin, to be divided among them 
 at his death. 
 
 The limitation is to be carried into execution at Samuel Neely's death, 
 which shows that the testator contemplated that the failure of issue, upon 
 which it was to depend, should exist at that time ; that is, he intended to 
 limit not on an indefinite failure of issue, but upon a failure at Samuel 
 Neely's death. 
 
 I have proceeded on the supposition that the limitation over does not 
 in terms vest the legacy in the next of kin upon Samuel's death, but vests 
 it in them indefinitely and merely fixes that as the time for executing the 
 trust by dividing it among them. I am convinced that pointing that 
 period out as the time for delivering the legacy to the next of kin, is suffi- 
 cient evidence that the testator, by " failure of issue," meant a failure at 
 that time. 
 
 But by barely including the words " to be equally divided among them,"
 
 *142] COLUMBIA, JANUARY, 1835. 115 
 
 in a parenthesis, the limitation will be turned into a legacy, the right to 
 which vested at Samuel's death. 
 
 With respect to the interest, I feel little difiQculty. The testator could 
 not intend that the capital should be apportioned among the issue of 
 Samuel as they should come of age, if that should happen during Samuel's 
 life. The direction is that it be apportioned equally among them. Until 
 his death, it could not be ascertained how many there would be of tliem ; 
 nor, of course, what the equal *share of each should be. As none [-:«, -q 
 of the capital therefore was to become divisible till Samuel's death, '- 
 and as the executors were directed to pay him the interest annually, it 
 follows that he was entitled to the interest on the whole sum, annually, 
 during his whole life That is, that all the interest was given to him 
 until the capital should go over according to the terms of the will. But 
 he was paid the interest up to the beginning of the year in which he died. 
 "Whether his administrator is entitled to the ^vhole interest of that year, 
 or the interest up to his death merely, is concluded in my opinion by 
 Fronty v. Wagner, in which it was held there should be an apportion- 
 ment. 
 
 The plaintiff had good cause for filing his bill ; and is entitled to his 
 costs and reasonable expenses of suit out of the fund. 
 
 It is decreed that the defendant, Ruif, as administrator of Samuel 
 Neely, is entitled to the interest of the fund which accrued in the year of 
 his intestate's death, up to the time of said death, and that he may have 
 a reference to ascertain the same. 
 
 That the defendants, Mary Neely and Margaret Brown, as next of kin 
 to Samuel Neely, in equal degree are entitled, share and share alike, to 
 the residue of the fund in controversy, after deducting therefrom the costs 
 and reasonable expenses of the plaintiff in this suit ; and they may have a 
 reference to ascertain the balance coming to them respectively. The 
 plaintiff's costs and expenses to be paid out of this fund. 
 
 That the other parties pay their own costs. Ruff's to be allowed him 
 out of his intestate's estate, if it extend so far. 
 
 The defendant, RufF, now moved to reverse this decree, on the grounds : 
 
 1. Because the limitation over to the next of kin is too remote, and 
 the estate vested absolutely in Samuel Neely. Or, 
 
 2. The limitation being too remote, the estate reverted to the right 
 heirs of George Neely, of whom the defendants' intestate was one, and 
 entitled to two-thirds thereof, and the Chancellor should have decreed 
 accordingly. Failing on these grounds, he will insist — 
 
 3. That the Chancellor should have decreed to him the interest for the 
 whole year in which his intestate died. 
 
 Summer, for the appellant, in support of these grounds, cited Butter- 
 field V. Butterfield, 1 Yes. sen. 153-4; Fearne, 461-4-5; *Earl pj^^ 
 of Chatham's case, 2 Bro. Ch. Rep. 33, 127 : Robertson v. Fitz- L 
 herbert, Fearne, 480-1 ; 1 Cond. Eng. Ch. Rep. 547 ; 5 lb. 42 ; Bell 
 V. Pritchard, 1 Russ. Ch. Rep. 213; Forth v. Chapman, 1 P. W. 693; 
 Adams v. Chaplin, 1 Hill, Ch. 265. 
 
 Fair & J. J. Caldivell, contra, cited Fearne on Ex. Dev. Ch. 3, § 9, 
 12, § 11, 45-G-8. Cordes v. Ardriau, 1 Hill Ch. 154.
 
 116 SOUTH CAROLINA EQUITY REPORTS. [*144 
 
 Harper, J. We concur entirely with the Chancellor on both the 
 points involved in the case. Fearne, in his treatise on contingent remain- 
 ders and executory devises, 471, says what has been so often repeated, 
 that " with respect to executory devises of terms of years, or other per- 
 sonal estates, the Court of Chancery has very much inclined to lay hold 
 of any word in the will to tie up the generality of the expression of dying 
 without issue, and confine it to dying without issue living at the time of 
 the person's decease." 
 
 Such is the case of Forth v. Chapman, and others, where property is 
 given to one and his issue, and limited over in the event of the legatee's 
 dying without leaving issue. But surely the words are stronger in the 
 present case, where the direction is explicit that the property shall be 
 divided, in default of issue, at the death of the legatee for life. They are 
 stronger than in the case of Nichols v. Hooper, 1 P. W. 198, quoted by 
 Fearne, at the page before' referred to, where the bequest was of £100, 
 if the legatee should die without issue, to be paid within six months after 
 the death; or in Pinbury v. Elkin, 1 P. W. 563, where the bequest was, 
 if the wife should die without issue by the testator, then after her decease 
 to the testator's brother. The words "then after," were taken to mean 
 immediately after, and consequently to restrain the dying without issue 
 to the time of the death. The case also might come within the reason of 
 the decision in Keily v. Fowler, Fearne, 482, there being a personal trust 
 to the executors to retain the fund and pay over the interest during the 
 son's life, and then to divide the fund. 
 
 We agree also with the Chancellor in respect to the apportionment of the 
 interest ; and such, I believe, was the common rule, independently of the 
 decision referred to by the Chancellor. The cases in which it was said 
 that there should be no apportionment between the tenant for life and the 
 remainder- man, were those of rent, payable on certain days, Jenner v. 
 Morgan, 1 P. W. 392, which *was remedied by statute 11 Geo. 2, 
 C. 19 ; that of money in the public funds, on which the dividends 
 are payable on certain days, Rashleigh v. Masters, 3 Br. Ch, Ca. 99; and 
 that of annuities. Pearly v. Smith, 3 Atk. 260. But, as is said in the 
 ease last referred to, interest is regarded as accruing from day to day, 
 and therefore apportioned. Edwards v. Countess of Warwick ; Wilson v. 
 Harman, 2 Yes. 67 ; 2 P. W. 176. And this was done where the interest 
 was reserved on a bond by half-yearly payments. So, where under a 
 marriage settlement, a certain yearly sum was to be paid on certain days 
 half yearly, for maintenance, this was apportioned, maintenance being 
 favored. In the case before us, the interest is directed to be paid annu- 
 ally, or as soon as collected, and plainly for the son's maintenance. 
 
 Decree affirmed. 
 
 JOHNSTON, J., and O'Neall, J., concurred. 
 
 *145]
 
 *145] COLUMBIA, JANUARY, 1835. 117 
 
 James Jordan vs. James Hunt. 
 
 Mode of stating accounts against trustees. [*145] 
 
 Spartanburgh. — June, 1834. 
 
 Bill by a ward against his guardian for an account. The appeal was 
 from the decision of Chancellor De Saussure on the Commissioner's 
 report, as to the mode of stating the account. 
 
 O'Xeall, J. In charging an executor, administrator, guardian or 
 trustee with interest, it is to be charged on annual balances. The mode 
 of making up the account has been repeatedly explained ; but in order to 
 guide the Commissioner, I will, from his own report, give him a practical 
 application of the rule laid down in Foot v. Van Ranst, Jones v. West, 
 Harper v. Addis, and Davis v. Wright. (2 Hill, 5G0.) 
 
 I perceive throughout the report, that the defendant received funds for 
 his ward in the course of each current year, and that the Commissioner 
 has charged him with interest from the day he received such funds respec- 
 tively. According to the cases which I have cited, he is entitled to hold 
 a fund thus received until the end *of the year iu which it was r^-ijr. 
 received, free of interest. It is then brought into the account, ■- 
 and whatever balance is in the defendant's hands, after deducting his 
 expenditures, constitutes an interest-bearing fund for the succeeding year, 
 the interest of which is to be applied to the payment of expenditures 
 in it ; and if less than them, the balance is deducted from the principal : 
 if the interest, however, exceed the expenditures, any balance left is kept 
 in a separate column, so as not to be compounded. 
 
 For example, the defendant, in May, 1831, received $350 43; this 
 sum he was entitled to hold free of interest until the 1st of January, 
 1822 ; from it was to be deducted his payments for 1821, $23 62, leaving 
 a balance of $326 81, on which interest is computed for 1822, and 
 amounts to $22 87, which is to be applied to the payment of the expen- 
 ditures of the ward which exceed the interest of $24 00, — which is to be 
 deducted from the principal : but in that year the guardian received for 
 his ward $119 50, which is to be brought into the account at the end of 
 the year, and being added to the balance of 1821, $326 81, makes an 
 aggregate of the ward's funds in 1822, of $446 31, from which is to be 
 deducted the balance of the expenditures for 1822, after extinguishing 
 the current interest, $24 00, leaving a balance of $422 31, on which 
 interest is to be computed for 1823. The same mode of making up the 
 accounts can be carried on through all the succeeding years. 
 
 The Chancellor's decree with these explanations, is affirmed. 
 
 Johnson, J., and Harper, J., concurred. 
 Henry, for the appellant. 
 Bobo, contra. 
 
 Vol. I.— 31
 
 *147] 
 
 118 SOUTH CAROLINA EQUITY REPORTS. [*146 
 
 John Chesnut and Wife, and others, vs. James Strong and Robert 
 Strong, Executors of John Maybin. 
 
 Parol evidence admissible to rebut an equity against executions arising out of their 
 obligations to vest funds so as to make interest. (See S. C. 1 Hill Ch. 122.) 
 [*149] 
 
 Where an executor is excused from making interest, or permitted to retain funds in 
 his hands without being charged with interest, generally the burden is cast on 
 the other side to show that he has made interest or used the funds himself; in 
 such cases, it seems that the answer of the executor should deny that he has 
 made interest or used the funds. [*150] 
 
 In the absence of proof, the legal presumption is that the notes given to the execu- 
 tor at his sale, were paid at maturity. [*151] 
 
 Pending suit against him, the executor, after tender to one of the legatees, deposited 
 the amount due with the Commissioner, with the instructions not to pay it over; 
 the legatee afterwards demanded it: — Held, that he was entitled to interest from 
 the time of demand. [*151] 
 
 Bill by legatees against executors for an account. This case was 
 brought before the Court of Appeals in January, 1833, (1 Hill Ch. 122,) 
 and the Court then determined that parol evidence was admissible, to 
 "show that the executors retained the legacies in *their hands 
 without making interest, in consequence of an agreement or under- 
 standing with the testator, that they should not be bound to invest the 
 fund or make interest, nor be chargeable with interest upon failure so to 
 do, and that they accepted the trust on that condition," and ordered the 
 case to be remanded to the Circuit Court, for the purpose of Veceiving 
 the evidence and being heard and determined 
 
 The case came on before Chancellor Johnston, July 1833, who 
 received the parol evidence, though against his own opinion of its admis- 
 sibility, and besides he regarded it as unnecessary, the words of the will, 
 in his opinion, amounting to a bequest of the interest to the executors. 
 He dismissed the bill with costs, as to the plaintiffs, (Thompson and 
 vrife,) who had given a receipt in full for their share ; and decreed that 
 the defendant, James Strong, (Robert Strong having died pending the 
 bill,) account before the Commissioner touching the legacies of the other 
 plaintiffs, together with their aliquot shares of the interest actually made 
 thereon, proper credits to be allowed; and the consideration of the 
 remaining costs, and all other equities, to await the coming in^of the 
 Commissioner's report. 
 
 The Commissioner accordingly made up bis report, in which he sets 
 forth and examines the evidence, and then gives a statement of the 
 amount of the estate, and of the interest proved to have been received by 
 the executors. The result is, that there is a balance due to Chesnut and 
 wife of $33 50, and to Garten and wife, $1066 25, whichsums he recom- 
 mends to be paid to them respectively. 
 
 The case came up before Chancellor De Saussure at Chester, July 
 1834, on exceptions to this report. Of the numerous exceptions, it is 
 necessary to notice only the following : 
 
 The plaintiffs excepted : — Because interest should have been charged 
 on the whole estate, except so much as the defendant showed he had not 
 made interest on, and the onus of proof is put on the defendant. 
 
 On which the Chancellor remarks — "To support this exception, I
 
 147] 
 
 COLUMBIA, JANUARY, 1835. 119 
 
 suppose that part of the evidence is relied on, whieli states that several 
 persons who wislied to borrow money of the estate, were informed by the 
 executors that they were not in funds to loan. This I consider too loose 
 and inconclusive to establish the fact required to be proved, that the 
 whole estate was out at interest. *Thcse loose declarations mip;ht p^. ^ 
 have been the resource of the executors to repel the importunities L 
 of persons anxious to borrow ; or they might at that time have loaned the 
 money out to confidential friends without security or interest, knowing that 
 at all events they would be liable for the principal. By the decretal order, 
 it would seem, too, as if the oiius of proof is put upon the plaintiffs, to 
 show what interest had been actually made ; which has not been done 
 to the extent claimed. It does not therefore appear to me that the 
 Commissioner has done wrong. This exception is therefore overruled." 
 
 Another exception on the part of the plaintiff was, — Because the Com- 
 missioner has not allowed interest on the share of Garten and wife from 
 1830, when the demand was made, nor even since the filing of the bill; 
 although the defendants refused to let the plaintiffs have the money which 
 was left with the Commissioner. On which the Chancellor says: "At 
 the time of the legatee's (Mrs. Garten) coming of age, the executors 
 were bound to pay the legacy. At all events, they should have been 
 ready when the demand was made, and still more when the bill was filed. 
 The very ground of resistance to paying interest was, that they were at 
 liberty to keep the money in their hands until the legatees came of age. 
 It must therefore be assumed that they were in funds to pay, (except as 
 to such of the funds as were proved to have been loaned out and bore 
 interest,) and being so bound and not paying, the executors are charge- 
 able with interest at least from the time of the demand. As to the pay- 
 ment into the hands of the Commissioner, that made no difference ; for 
 the executors forbade the payment of the money over to Garten and wife; 
 so that the money might as well have been kept in their hands. This 
 exception must therefore be sustained, and the interest allowed from the 
 time of demand; and if that is not proved, from the filing of the bill." 
 
 Both parties appealed. The plaintiffs, because the Chancellor over- 
 ruled the first of these exceptions, and the defendant, because he sustained 
 the last. 
 
 Williams, for the plaintiffs. 
 
 Clarke and M^Dowall, for the defendant. 
 
 So much only of the opinion of this Court is given as relates to the 
 foregoing questions. 
 
 *Harper, J. . The principal question is that made on part of r*j^g 
 the plaintiffs, respecting the liability of the defendant generally for •- 
 interest on the amount of the estate in his hands. The former decree of 
 this Court established that the defendants might exempt themselves from 
 liability to pay interest on the funds in their hands, by showing that they 
 had kept them locked up without making interest, and that this was in 
 consequence of an agreement or understanding with the testator that they 
 might so retain them, and should not be responsible for interest. I had 
 thought it sufficiently explained that parol testimony was not to be 
 admitted to contradict, explain, or in any degree control the operation ol
 
 120 SOUTH CAROLINA EQUITY REPORTS. [*149 
 
 the will, but to rebut an equity attaching: on the executors, not by any 
 direction of the will, but by the course and practice of this Court, impos- 
 ing on them an ol)ligation to vest the funds so as to make interest for the 
 legatees. If interest were made or charged, it must go as an accessary 
 of the principal, and its disposition must be determined by the will 
 alone. Chancellor Johnston, on the hearing of the case before him, 
 received the parol testimony, and has reported his opinion of the effect of 
 it — that "it shows clearly an understanding and agreement between the 
 testator and the executors, that the latter were not to be charged with 
 interest." The Chancellor comes to the conclusion, however, that the 
 words of the will alone are sufficient to excuse the executors from the 
 making of interest. I do not think it necessary to enter upon a re- 
 examination of this part of the case, as we concur with the Chancellor 
 upon the effect of the testimony. 
 
 The Chancellor adds: "I think the weight of the testimony goes to 
 establish more: that the executors were to be at liberty to make such 
 profit as they could by the use or loan of the money;" and upon this it is 
 argued, that the effect of the testimony is not to show that the executors 
 were excused from making interest, but that they were to take it for 
 themselves; for which purpose we have determined the testimony not to 
 be admissible. But if the understanding was that they might use the 
 fund without accounting for interest, it involves, a fortiori, that they 
 might retain it unemployed in their hands without being so accountable. 
 And if they did so retain it, from the belief that interest, if made, would 
 be their own, this is a no less valid excuse. 
 
 The chief argument on the part of the plaintiffs is, that the burden of 
 *1501 PJ'oof ^^^s on the defendant, to show that he did retain the *fund 
 -' unemployed in his hands ; that such are the terms of the decree of 
 this Court, and that he has failed to do this ; on the contrary, it appears 
 that he did, in some instances, and for aught that appears, may have done 
 so (with a trifling exception) on the whole estate. It may be remarked, 
 that if the defendant did retain the money in his actual possession, this 
 was a fact not strictly susceptible of proof. It would involve the proof 
 of the negative — that at no time had he lent or otherwise disposed of the 
 money. If he had lived near a Bank, it might be said that he could 
 have made a deposit of the money, and this might have been proved. 
 But this is not the ordinary course of dealing of persons living in the 
 country at a distance from Banks. I should be at a loss for the au- 
 thority on which I would say that the defendant was bound to deposit in 
 Bank. In the various cases in which an executor has been held excused 
 from making interest, on account of the exigencies of the estate requiring 
 him to retain funds in his hands, (as to meet probable demands,) which I 
 have lately had occasion to examine, proof was not required that the 
 funds were deposited or actually retained. Upon its being shown that 
 the exigencies did in fact exist, it seems to have been taken for granted 
 on the part of the executor that he did retain -the funds to meet those 
 exigencies, and the burden was thrown on the other side, to show that 
 the executor did make use of the funds himself, or otherwise dispose of 
 them. Perhaps it would have been better that a stricter rule had been 
 adopted, but I am not at liberty to make one. If the executor had not 
 the funds ready when properly called upon for them, this might be evi-
 
 *150] 
 
 COLUMBIA, JANUARY, 1835. 121 
 
 dence cnougii that he did use the funds himself; liut in this case, the 
 defendant seems to have been always ready when properly called upon. 
 When the want of notice is relied upon as a defence, the defendant is re- 
 quired to deny it explicitly on oath, and then, as this is a negative not 
 strictly susceptible of proof, the denial is held sufficient to throw on the 
 other party the burden of proving the notice. So, by parity of reason- 
 ing, I should say that the party alleging he has not made interest, should 
 in like manner deny in his answer. If the answer be clear, consistent 
 and explicit, with nothing to contradict or discredit it, then the burden 
 of proof must rest on the plaintift". I think the answer sufficiently clear 
 and positive in the denial of having received interest beyond a certain 
 specified amount, nor do I perceive any thing in the whole case to dis- 
 credit the answer. To a certain extent *it is supported. The r*i'i 
 defendant is shown, in one instance, to have lent the money of the ^ 
 estate without interest. One witness who states that he paid him interest, 
 states also that he accepted it unwillingly, and did not receive the full 
 amount of interest. The witness, John Strong, the brother of the exe- 
 cutors, and who maybe supposed to have had an opportunity of knowing, 
 states that " the executors generally had the money in hand." Further 
 proof than this it vpould be hardly practicable to make. But the effect of 
 the testimony was rather for the determination of the Chancellor than for 
 this Court. These views dispose of the plaintiff's ground of appeal. 
 
 It is argued that the notes given for the property of the estate when 
 sold, would bear interest from the expiration of the year's credit ; that 
 we cannot suppose them paid at the moment of maturity, and if not, that 
 the executors must in fact have received interest. The executors charged 
 themselves with the amount of the sale bill, as of the time it became due, 
 and this in conformity to the practice of this Court. If this practice be 
 correct, then the legal presumption is, that such notes are paid at ma- 
 turity, and it is for those who allege otherwise to furnish the proof. It 
 would be difficult to imagine any other rule. Such proof seems to have 
 been furnished to a certain extent in the instance of M'Clarkiu, and the 
 defendant is charged accordingly ; but in another instance, a large pay- 
 ment seems to have been made before it was due. If executors are 
 subject to the disadvantages which may result from their being charged 
 in this manner, they ought, on the other hand, to have the benefits which 
 may result from it. 
 
 It was the fault of the plaintiff, Garten, that he did not receive his 
 legacy when it became due. The defendant offered to pay him the 
 principal, and to account on oath for all the interest he had actually 
 made, and we have determined that this is all he was entitled to. He 
 was offered more than has now been established in his favor, defendant 
 offering to give up his commissions. But it was admitted in argument 
 by the defendant's counsel, that some time in 1833 or 1834, Garten, re- 
 penting his refusal, demanded the amount which had been deposited with 
 the Commissioner in Equity, and that the defendant then refused to let 
 him have it. Defendant then put himself in the wrong by detaining what 
 he admitted to be due, and from that time we think he must pay interest. 
 *The precise date of this demand was not fixed, but it may be r*i co 
 ascertained by the Commissioner. '- 
 
 Decree accordingly. 
 
 Johnson, J., and O'Neall, J., concurred.
 
 122 SOUTH CAROLINA EQUITY REPORTS. [*151 
 
 William T. Spann & Tyre Jennings, v. Tyre J. Spann. 
 
 Decretal order?, ■when tbey may be suspended. [*153] 
 
 Although a Chancellor has no authority to set aside a previous order of Court, final 
 in its nature, he may, eitlier in the Court or at chambers, suspend its execution, 
 on the ground of subsequent matter that would render its execution oppressive 
 or iniquitous. ["*15G] 
 
 Sumter. — 
 
 This bill was filed for an account by the plaintiffs, as late copartners 
 against the third partner, and for the appointment of a receiver in place 
 of defendant, who, by the copartnership concern, was appointed agent 
 to settle the affairs of the firm. The Court refused to substitute a re- 
 ceiver in place of the defendant. An account was taken, and at Feb. 
 Terra, 1833, a report was made by the Commissioner, of the several sums 
 in which each of the copartners was individually indebted to the concern, 
 and a statement of the demands due by the concern. The report was 
 finally confirmed. At February Term, 1834, on motion of the plaintiffs' 
 solicitor, Chancellor De Saussure granted the following order, to wit : 
 
 " On motion it is ordered that each of the copartners in this case do 
 pay up into the hands of the Commissioner the amounts reported to be 
 due by each of them respectively. And that the Commissioner do apply 
 the amounts when received, first, to the payment of the costs of this suit, 
 and secondly, to the payment of the debts due by the copartnership as 
 reported by him ; and that the Commissioner do issue executions, either 
 against the persons or property of the said copartners, to compel the 
 payment of the amounts due by them. Copartnership property in the 
 hands of either of the copartners, or their agents, to be charged with 
 the debts. 
 
 "It is further ordered that the copartnership property in the hands of 
 either of the copartners be produced and delivered to the Commissioner, 
 to be by him sold for payment of the debts of the copartnership, and 
 that he do sell the same on sale, day in April next." 
 ^■|ro-| *From this order there was an appeal. In conformity to the 
 -' order, attachments were lodged with the sheriff against each of 
 the copartners (separately) for the sums as established by the report to 
 be due by each. William T. Spann was arrested and held in custody by 
 the sheriff. On the 5th August, 1834, his honor Chancellor De Saus- 
 sure, at chambers, on the application of William T. Spann and his 
 solicitor, suspended the attachment against said William T. Spann, and 
 directed him to be discharged from custody by the following order, to 
 wit: 
 
 " William T. Spann & T. Jennings v. Tyre J. Spann. The motion 
 before the Court is to set aside an attachment issued in this case against 
 William T. Spann ; and also to have it referred to the Commissioner to 
 ascertain what sums of money the said William T. Spann has paid to 
 the debts of the copartnership, and that he be allowed credit for what he 
 has already paid, or may hereafter pay to the debts of the copartnership, 
 on the amount reported against him in this case. The attachment in 
 question was issued by the Commissioner under a decretal order made in 
 this case in February, 1834, at the instance of the plaintiffs, and by con-
 
 *153] COLUMBIA, JANUARY, 1835. 123 
 
 sent of parties. The order directed that eacli of tlie copartners in this 
 case do pay up into tlie hands of the Commissioner tlie amonnts reported 
 to be due by each of them respectively, and that the Commissioner do ap- 
 ply the amonnts when received — first, to the payment of the debts due by 
 the 'copartnership as reported by him ; that the Commissioner do issue 
 execution, either against the persons or property of the said copartners, to 
 compel the payment of the amount due by their copartnership pro])crty, 
 in the hands of either of the copartners or their agents, to be charged 
 with the debts ; and that the copartnership property in the hands of 
 either of the copartners be produced and delivered to the Commissioner, 
 to be by him sold for payment of debts of the copartnership, and that 
 he do sell the same on sale day in April then next ensuing. 
 
 " In pursuance of that decretal order, made at the instance of the 
 parties themselves, the attachment was issued by the Commissioner, and 
 the body of William T. Spann has been taken and is now in custody. 
 The first object of the motion is to be relieved from the attachment. It 
 appears that the creditors of the parties in question are not parties in 
 the suit, and did not move for the attachment ; but they have judgments 
 and executions against them individually and as copartners. Some of the 
 copartnership debts *stood in the name of the individual co- r^irA 
 partners, as appears by the report of the Commissioner in Feb- '- 
 ruary, 1833. These executions have been enforced in part against the 
 property of William T. Spann, and steps are taking to give them further 
 effect against the individual i)roperty of said William T. Spann. It ap- 
 pears further, that Tyre J. Spann, the defendant in this suit, has left the 
 State, and carried off great part of his property, so that his person and 
 his property are out of the reach of the process of the Court. The 
 motion to dissolve the attachment and to discharge the defendant, Wil- 
 liam T. Spann, from custody, is opposed on the grounds that this cannot 
 be done at chambers, or even by a single judge, as it is, in fact, an appeal 
 from the decree of the Circuit Court, which can be made only to the 
 Court of Appeals. This, however, is not a correct view of the case. 
 The motion does not seek to set aside the decree of the Court made by 
 consent of the parties, but to discharge the defendant from the arrest, on 
 the grounds which have arisen since the order. 
 
 " The creditors not being parties to the suit or the order made, cannot 
 oppose it. By whom is it then opposed ? By the defendant. Tyre J. 
 Spann, the copartner of the plaintitf, William T. Spann. With what 
 grace a brother resists the enlargement of a brother from prison is not 
 for the Court to inquire. But the inquiry is proper. What did these 
 persons intend by consenting to a decretal order that execution might be 
 issued against either of them, no creditors being in Court to require the 
 same? 
 
 " The bill was for the settlement of accounts between these copartners, 
 who had lost all confidence in each other, and were willing to give a con- 
 trol to each other over their persons and effects, to compel a just settle- 
 ment with their creditors and each other. It was a mutual agreement to 
 operate on each of them. This mutuality is defeated by the conduct of 
 the defendant, T. J. Spann. 
 
 " He has gone beyond the jurisdiction of the Court, and cannot be 
 made liable personally to the order of the Court to which he con.sented. 
 Yet he requires, and he only (for I repeat, that the creditors are not
 
 124 SOUTH CAROLINA EQUITY REPORTS. [*154 
 
 parties to this suit, or to the decretal order,) that his copartner should 
 l)e held in custody whilst he evades the effect of the order on himself. 
 This cannot be allowed. It is therefore ordered that the order for the 
 attachment be rescinded, and the party, William T. Spann, be discharged 
 from custody. The creditors, of course, are at liberty to act on Iheir 
 executions. 
 
 ^^rr-i *" This is the only part of the case before me; consequently 
 -^ the only part requiring my decision. But it is proper to grant the 
 other part of the motion. It is therefore ordered, that the Commissioner 
 do examine and report what sums of money the said Wm. T. Spann has 
 paid to the debts of the copartnership, and what amounts have been paid 
 by the other copartners ; and that each of them be allowed credit for 
 what he has paid, or may hereafter y)ay to the debts of the copartnership, 
 on the amount reported against him in this case." 
 
 A notice of appeal from this order, by the defendant's solicitor, was 
 immediately served on Wm. T, Spann and the solicitor of the plaintiffs, 
 on the Chancellor and Sheriff, on the grounds : 
 
 1. That the Chancellor had no authority at chambers, to rescind an 
 order made during Terra time. 
 
 2. That his Honor erred in deciding that the application to discharge 
 the party from arrest proceeded upon grounds which have arisen since 
 the order, of February, 1834 ; as, in fact, no such grounds have so since 
 arisen. 
 
 3. That the fact of T. J. Spann, who was bound in a " ne exeat 
 bond," having left the State, did not appear on the application before the 
 Chancellor , and if it had appeared, was no ground for the recisiou of 
 the order. 
 
 4. That by the order of February Term, 1834, made on application of 
 Wm. T. Spann, the copartners themselves have assented that the credi- 
 tors reported as such, should have the remedy of attachment for their 
 demands, and the right to enforce it as against the copartners — the 
 Chancellor being mistaken in the fact that the creditors have judgment 
 and executions against the parties individually and as copartners. 
 
 5. That by the order of Feb. 1834, the Commissioner was authorized 
 to issue the attachment for the costs of the case. 
 
 6. That the copartnership concern had a right, under the order of 
 Feljruary, 1834, to the attachment for the amount due by said Wm. T, 
 Spann, to said concern, in said case. And no conduct of either of the 
 copartners, either before or since the order, (even if appearing,) could 
 give the Chancellor the right at chambers to reverse the order. 
 
 On the 21st August, 1834, Chancellor De Saussure made the 
 *1561 *fo^'owing additional order, on application of said Wm. T. Spann 
 -' and his solicitor, to wit : 
 
 "Wm. T. Spann and T, Jennings ;;. T. J, Spann — motion for order 
 on the Sheriff of Sumter district, to discharge Wm. T. Spann from 
 custody." 
 
 "On motion of Mr. Mayrant, solicitor for the plaintiff, Wm. T. Spann, 
 after hearing the argument, it is ordered that the said sheriff do forthwith 
 discharge the said Wm. T. Spann from custody, in pursuance of the 
 former order in this case, on the 5th August instant, notwithstanding the 
 notice of appeal from that order, given by said Tyre J. Spann ; provided,
 
 *15G] COLUMBIA, JANUARY, 1835. 125 
 
 that before such discharge be made, the said Wra. T. Spann do enter 
 into bond with good security, in the penalty of three thousand dollars, 
 payable to the Commissioner of the Court, conditioned that he will pay 
 to the Commissioner, or to the creditors, his share of the debts of the 
 copartnership, as soon as the same is ascertained and reported by the 
 Commissioner, and that this condition be regarded as a part of the said 
 order of the 5th August, instant." 
 
 Moses, the defendant's solicitor, in conformity to the notice served on 
 the Chancellor and the parties, now submitted his motion to the Ajjpeal 
 Court to reverse the said order made by the Chancellor, on the grounds 
 therein stated. 
 
 Johnson, J. The order of the 21st February, 1834, was made on the 
 application of the plaintiff's themselves, and is in its nature final, and not 
 interlocutory. It awards execution against the parties, and if erroneous, 
 was the subject of appeal. I am therefore clearly of opinion that the 
 Chancellor had no authority to set it aside, on account of any su])posed 
 error in point of fact or law. But it is equally clear that the Courts, 
 both of Law and Equity, or a Judge or Chancellor at chambers, have 
 the power, and daily exercise it, of suspending the execution of even final 
 process on account of subsequent matter which would render the execu- 
 tion of it oppressive or iniquitous. Thus, when the amount du^ on a Ji. 
 fa. or ca. sa. had been paid to the plaintiff", and satisfaction not entered, 
 or where there were mutual judgments which might be set off" against 
 each other, and one of the parties should be taken in execution, in 
 these and such like cases at common law, it is the daily practice to 
 obtain an order at chambers, in vacation, to stay the proceedings until 
 Term time, when the matters of dispute, *if there be any, can be r*iciT 
 determined according to the forms of law. And I would say, in ^ 
 general, that whenever subsequent occurrences would render the execu- 
 tion of a judgment or order of a Court, either of Law or Equity, 
 oppressive or unjust, the execution of it ought to be restrained ; and if 
 this should happen in vacation, it can only be done by an order at 
 chambers. 
 
 In the application of this rule, it will be necessary to advert particu- 
 larly to the circumstances of the case. The parties had been partners in 
 trade, and the object of the bill was for an account and settlement of the 
 concern. A report had been made by which it appeared that each of the 
 parties were individually indebted to the concern. The debts of the 
 concern were to be provided for out of this fund, and it was the interest 
 of all, as well as their duty, to make this fund available as promptly as 
 possible, and hence the application and order for final process against 
 them individually, for the sums severally due by them. In this there was 
 a perfect equality ; the parties and their effects were in the power of the 
 Court, and acceptable to its process, when the order was made ; but the 
 defendant aftewards removed with his property without the reach of the 
 process of the Court, and by that act destroyed that equality of benefit 
 and of burthen, which was the foundation of the order, and now asks, 
 through his solicitor, that it shall be enforced against the plaintiffs. This 
 will not be tolerated. 
 
 It is said that creditors are interested in the execution of this order
 
 126 SOUTH CAKOLINA EQUITY REPORTS. {*157 
 
 They are not parties to the bill, and cannot be heard. — If there be credi- 
 tors, the Courts of Justice are open to them, and will afford relief when 
 they apply for it. There is certainly nothing in the order itself, nor in 
 the proceedings, which shows that it was made at the instance of the 
 creditors, or for their security, nor is it pretended that tlie arrest of Wm. 
 T. Spann was made at their instance. 
 
 The claims of the officers of the Court stand precisely upon the footing 
 of the claims of the creditors ; the object of the order, as before observed, 
 was intended solely for the benefit and security of the parties themselves, 
 and not for the officers of Court, and must be governed by the same 
 rule. The payment of the costs was dependent on the payment of the 
 fund into Court ; and that having been defeated, the payment of costs 
 must be postponed until the final determination of the case, or until some 
 substantive order shall be made for their payment, 
 
 *15S1 *Upoii the whole, we think the Chancellor has put the case 
 -^ upon the true grounds, and concur with him in opinion. 
 
 Motion dismissed. 
 
 Michael Lever v. William Lever, Executor of George Lever, 
 
 deceased. 
 
 Where the items in an account book were read over to the party charged, who 
 objected to a few items only, the book may be received in evidence as his admis- 
 sion. [*159] 
 
 On a bill for an account against an agent, his books, if the entries are made in the 
 usual course of business, are admissible against the principal; especially when 
 both parties are dead and there is strong corroborating evidence of the correct- 
 ness of the books. [*160] 
 
 Unless the books of an agent purport to contain an account of all payments to and 
 for his principal, he will not be confined to them in discharging himself. [*161] 
 
 Where one acted as general agent in the management of another's estate, with an 
 understanding that he should receive all moneys, defray debts and expenses, and 
 if required before his death, pay over the balance, and if not so required, continue 
 to act till his death, when the unexpended balance should be paid over: — Held, 
 that the agent is not liable for interest until after demand ; nor would using the 
 money make him so liable unless he had actually made interest, or failed to pay 
 the debts and expenses, to the prejudice of his principal. [*162] 
 
 Where the books of an agent profess to contain an account of all receipts, payments 
 and services, on account of the agency, and are offered in evidence by the agent, 
 he shall not be allowed any other charges than those there contained. [*1G3] 
 
 A private agent is not entitled to commissions unless by contract. [*166] 
 
 The bill in this case was filed by the plaintiff, for an account from the 
 estate of his father, George Lever, alleging that by reason of the plain- 
 tiff"'s " mental imbecility and want of education," the said George had for 
 many years acted as his general agent and trustee — received large sums 
 of money and the proceeds of his crops, for which he had not accounted. 
 
 On appeal from the decree of Chancellor Johnston, the Appeal Court, 
 in January, 1833, decided the points then made, and directed issues at 
 law to inquire whether a judgment obtained by George Lever against 
 the plaintiff was founded on any and what consideration, or was volun- 
 tary ; and to try the plea of final account and settlement. — (See 1 Hill, 
 Ch. 62.) 
 
 On these issues the jury found in favor of the judgment, and against
 
 *158] COLUMBIA, JANUARY, 1835. 127 
 
 the plea of final account and settlement ; and thereupon the Court of 
 Appeals, at May Terra, 1834, ordered a reference before the Commissioner 
 of Newberry, " who should examine and report upon the accounts 
 between the parties, charging George Lever with all moneys by him 
 received on account of Michael Lever, and which are embraced in the 
 account sought by the bill ; and crediting the said George with such 
 sums as he may have properly expended for the said Michael, and also 
 with such debts as the said Michael may owe to the said George, 
 including therein the judgment so found by the jury to be bona fide ; and 
 generally with all suitable and proper allowances." The case came up 
 again before Chancellor Johnston, at Newberry, July, 1834, on cxcei)tious 
 by both parties to the Commissioner's report, and he overruled all the 
 exceptions and confirmed the report. 
 
 From this decree both parties appealed, on the ground of error in the 
 Chancellor, in overruling the exceptions respectively taken. *Most rs^icQ 
 of the numerous exceptions taken depend entirely ou the facts. ^ 
 The following are all which need be noticed : — 
 
 On the part of the plaintiffs — 
 
 3. That the Commissioner allowed the books of George Lever to be 
 given in evidence, not only to prove necessaries furnished to the plaintiff, 
 but cash advanced and spirits sold. 
 
 7. That the Commissioner, after having received the books of George 
 Lever to prove moneys advanced to the plaintiff, ought not to have per- 
 mitted the defendant to have shown payments in any other way. 
 
 By the defendant — 
 
 4. That the Commissioner charged the defendant with interest on the 
 moneys received from the time at which they were supposed to have 
 been received: whereas the defendant contends — 1 That he is not 
 chargeable Avith interest at all. — 2. If at all, only from the filing of the 
 bill. — 3. At all events only on annual balances. 
 
 5. That the Commissioner has not allowed defendant commissions on 
 receiving and paying away moneys. 
 
 The facts relating to these several exceptions are fully stated in the 
 opinion of this Court. 
 
 Caldwell and Fair, for the plaintiff. 
 Fope and Summer, for the defendant. 
 
 O'Neall, J., delivered the opinion of the Court. 
 
 3d. The objection to the admissibility of George Lever's books, to 
 prove cash advanced and spirits sold, vanishes when we look to the i)roof 
 on which they were received in evidence. It appears that the items were 
 read over to the plaintiff, and he was requested if he had any objection to 
 make to any of them to state it. He objected to a few items, but not to 
 the rest. In this point of view, the books were admissible to show what 
 items he admitted by not objecting to them, when he selected others as 
 improper and objected to them. In another respect too, credit was given 
 to the books by the plaintiff. He stated that he had only received of his 
 money $365, and the charges on the books for money advanced to him 
 corresponds, as the plaintilPs counsel stated, within a very small sum. So 
 I think, under the proof, the books were admissible ; but not as falling 
 exactly within the case of Sinclair and Kiddle v. Price, decided at
 
 128 SOUTH CAROLINA EQUITY REPORTS. [*159 
 
 *1601 ^Columbia, December Term, 1832.* Tliere the book received in 
 -^ evidence was the journal of an agent managing a country store 
 
 * Sinclair & Kiddle, Assignees of George Keenan, v. Admr's of Thomas Price. 
 
 The plaintiffs, as the assignees of George Keenan, filed their bill for an account 
 against the defendants, as administrators of Thomas Price, alleging that Keenan, 
 who resided in Charleston, furnished goods to a large amount to Price, living in Sjiar- 
 tanburg, to be retailed by Price, as his agent. The defendants, in their answer, admit 
 the agency, but state that they are unable, from any books of their intestate, to say 
 what amount of goods he received, or on what advance he sold. They set out, how- 
 ever, the credit and cash sales, and the stock of gooils on hand. They further state 
 that Price kept a journal of his remittances and disbursements to and on account of 
 Keenan, the amount of which is eight thousand seven hundred and forty-eight dollars. 
 
 On the reference which was ordered to make up the accounts, the defendants 
 offered Price's journal in evidence, after having first proved, by other evidence, the 
 items contained in it, to the amount of seven thousand four hundred and four dollars, 
 of the eight thousand seven hundred and forty-eight set out therein. The Commis- 
 sioner rejected the journal as evidence. On appeal to this Court, on this point, the 
 following opinion of the Court was delivered: — 
 
 O'Neall, .J. Ought the journal or cash-book of the defendant's intestate to be 
 received, as evidence of the remittances and disbursements contained in it? This 
 question is one of great novelty. The affirmative of it is an extension of the princi- 
 ple "that merchants' books, from necessity, are evidence of the delivery of goods," 
 to all transactions between principal and agent, when the books of the latter are 
 regularly kept. To this extent, perhaps, the rule ought never to be laid down. 
 But with some qualifications, I think, the books of the agent ought to be received. 
 If the entries are made in the usual course of business, then, I apprehend, they are 
 evidence. — 1 Stark, on Ev. 73. What was the usual course of business in the case 
 before us? The defendant's intestate was to sell, defray expenses, and remit, in 
 cash or produce, the proceeds of the sales. It is both usual and proper, that he 
 should keep an account of sales, disbursements, and remittances. Between two 
 honest men, this account would always constitute the guide to a settlement. If the 
 principal is not disposed to admit it from necessity, it appears to me it should be at 
 least evidence in favor of the agent, until there is some showing bj' which a doubt 
 of its correctness can be raised. For, in a transaction between principal and agent, 
 it is not to be expected that a witness can be produced to prove every dollar paid 
 for the expenses of the business, or for every sum remitted. Here then exists the 
 same necessity to receive the books of the agent in evidence, as in the case of 
 merchants and shop-keepers. There is, however, another consideration, of great 
 weight, growing out of the relative situation of the parties. The principal holds 
 out his agent to the world as a man in whom he places such trust and confidence, 
 that he is willing to be bound by all of bis acts done within the agency committed to 
 him. This is at least a legal good character given to the agent bj' the principal, 
 as to all acts between them. It is saying, on his part, he is trustworthy, and with 
 that character, his books ought to be evidence against his principal until it appears 
 he has forfeited it by abusing the confidence reposed in him. But, in the case before 
 us, a still stronger circumstance may be adduced why the books of the agent should 
 be received against the principal. It will be recollected that he sold goods on credit 
 for the use of his principal. His books would have been evidence for his principal, 
 against every one who bought goods at the store. Could the principal be allowed 
 to say: "I will charge A. by the books of my agent; and yet, (when he is called ou 
 to account to me,) I will reject the books of the same agent, as not trustworthy, 
 against me?" I should think not. The principle that the books of the agent, if the 
 entries are made in the usual course of business, are evidence against the principal, 
 is, I think, well sustained by the case of the Union Bank v. Knapp, 3 Pick. Rep. 
 96, which I have taken from a note to 1 Stark on Ev. 73. In that case, which was 
 for money had and received by the bank against a depositor who had overdrawn, 
 it was held that the books of the bank were competent evidence to show receipts 
 and payments of money; and that if the clerk who made the entries be dead, or 
 insane, his handwriting may be proved. From this case, I extract two principles, 
 on which the decision turned: 1st. That the entries were in the usual course of 
 business ; 2d. That the bank was the agent of the depositor to receive and pay out
 
 *160] COLUMBIA, JANUARY, 1835. 129 
 
 for his principal, who lived at a distance. It contained rcji'ular entries 
 of cash remitted, expenses paid, cotton remitted, and services rendered. 
 Both principal and agent were dead, and nine-tenths of the items had 
 been established by other proof. It was held that the jonrnal was the 
 best evidence of which the nature of the case was susceptible, and was 
 therefore admitted. "We are still satisfied of the correctness of that de- 
 cision, but we are not disposed to extend it beyond the case to which it 
 applies. In this case the plaintiff is alive, and the defendant may have 
 his discovery, as he has had the benefit of an equivalent in his admission ; 
 and this constitutes one reason why we will not decide this case on the 
 authority of that. Another reason is, the books do not purport to be 
 entries in the discharge of the agency. 
 
 7th. The 7th exception must have been sustained on the authority of 
 the decision in the case of Sinclair and Kiddle v. Price, decided at De- 
 cember Term, 1833, and reported in part in Hill's Chan. Rep. 431, if in 
 this case, as in that, the books had purported *to contain an ac- t-^to-i 
 count of all the moneys paid to or for the plaintiff. The answer L 
 
 his deposits. Both of these are applicable to the case under consideration. Other 
 circumstances, however, in this case, go to support the book of the defendant's 
 intestate. In an early stage of the case, this book was directed bj a decretal order 
 to be excluded. It contained charges during several years, for disbursements and 
 remittances to the amount of eight thousand seven hundred and forty-eight dollars 
 and seveuty-five cents; the defendants succeeded, by other proof, in establishing 
 seven thousand four hundred and four dollars out of this sum. This is strong cor- 
 roborating evidence of the general correctness of the book; and when both the 
 principal and agent are dead, furnishes at least such reasonable evidence of the 
 correctness of the charges as to authorize the Commissioner to receive it in evidence, 
 and give it such weight as on a careful examination of the entries be may think it 
 entitled to. If, upon such examination, he should find nothing in the hook, or find 
 evidence aliunde to discredit it, then the defendant should be allowed the balance of 
 the disbursements and remmittances contained in it, amounting to one thousand 
 three hundred and forty-four dollars seveuty-five cents, and which they were unable 
 otherwise to prove. 
 
 The case was again brought before this Court in January, 1834, on the question, 
 among many others, whether the defendants should be allowed any other charges 
 than those contained in the journal. On which Mr. Justice O'Neall delivered the 
 following opinion of the Court: — 
 
 In another part of our opinion, we decided that the defendants should be allowed 
 credit for all the charges contained in the journal of Price. It is now insisted, by 
 the plaintiffs, that the defendants should not be allowed to make any other charges: 
 and I am satisfied that this is the correct mode of allowing the defendants credit for 
 disbursements and remittances made, and services rendered by their intestate on 
 account of his agency. This journal, or cash-book, professes to be an account of all 
 the debits against the store, for disbursements and remittances made and services 
 rendered by the intestate. His charges were made while the transactions were fresh; 
 it is not to be believed that he entered part, and omitted part. Tiiese were his 
 memoranda, to enable him to settle with the principal; and it would be much more 
 reasonable to conclude, that he had charged too much instead of too little. This 
 view is sustained by the defendants, in their answer, for they say, "that the said 
 Price likewise left a book, in which he kept an account of all his remittances and 
 disbursements to, and on account of said Keenan, including his wages for his own services." 
 After allowing the book as evidence of every charge contained in it, it would be 
 giving to the defendants a great and unconscientious advantage, (and one which I 
 know they have not asked, and would not, under any circumstances, ask to be 
 allowed,) to permit them to gather up every charge, which, from the recollection of 
 witnesses, might slightly vary from Price's entries, and allow such in addition. The 
 allowance, however, of the book, as evidence of the charges contained in it, excludes 
 necessarily all other evidence on these subjects.
 
 130 SOUTH CAROLINA EQUITY REPORTS. [*160 
 
 here does not state, as that in the case of Sinclair and Kiddle v. Price 
 did, that the books contained an account of all payments to or for the 
 plaintiff. The answer here states "that the said George would let the 
 said Michael have small suras of money, but states that the said George 
 would charge him with the same in his account against the said Michael." 
 The preceding parts of the answer stated that the said George had paid 
 away all the money which he received for the plaintiff. There is there- 
 fore nothing in the answer which would confine the defendant to the books. 
 There is in this case, by allowing the books and other proofs of payments 
 to be adduced, no danger that the plaintiff will be twice charged for the 
 same thing ; for we have by this opinion excluded the charges which were 
 or might have been paid by Michael out of the money received by him 
 from the defendant's testator. In Sinclair and Kiddle v. Price, it was 
 manifest that this double charging had occurred. This exception derives 
 therefore no authority from that case ; and there is nothing in this case 
 which makes it proper to confine the defendant, in discharging himself, to 
 the entries on his testator's books. 
 
 *ir9l *4th. The defendant's 4th exception presents a very important 
 ""J legal question. 
 
 I will proceed to state the views which I have taken of the subject. 
 The defendant's testator was the agent of the plaintiff under very peculiar 
 circumstances. The relation of father and son would seem to exclude an 
 intention to commit wrong on the part of the former. So, too, the fact 
 of the defendant's imbecility would have furnished, ordinarily, a powerful 
 inducement to his father, not only to see that others treated him rightly, 
 but also to make him careful not to do him any wrong. I know Mr. 
 Lever well, and I think it is due to him that I should say here that I am 
 satisfied that he had too much Dutch honesty and integrity to take a 
 willful advantage of any one, much less his own child. 
 
 The bill, drawn according to the plaintiff's statement, and, I have no 
 doubt, according to the truth, (for it is an old saying that children and 
 fools will tell the truth,) states the nature and extent of the testator's 
 agency for the plaintiff in the following terms, to wit : " That George 
 Lever, late of, &c., the father of your orator, during his life, from the time 
 your orator arrived at the age of twenty-one, assumed and exercised the 
 ^,po-] entire control and *management of your orator's estate, both real 
 -^ and personal, in the character and capacity of a trustee, (or rather 
 as his natural guardian,) alleging as a reason for so doing that your ora- 
 tor was of so weak and imbecile mind as not to be capable of managing 
 his estate for himself, which, your orator being conscious of his liability 
 to be imposed upon by the frauds and devices of designing persons, as 
 well from a want of education as from a weakness of intellect, and repos- 
 ing most implicit confidence in his father, always permitted him so to do, 
 with the express understanding between them, at the time your orator 
 arrived of full age, and during the continuance of that relationship, that 
 he, the said George, would keep a regular account of the receipts and 
 expenditures thereof, and should the circumstances of your oratorh 
 situation require the funds in his hands to be paid over before his 
 death, he, the said George, would come to a full, fair, and final ac- 
 counting and settlement ivith your orator, and pay over tvhatever bal- 
 ance might be in his hands ; but should no settlement take place beticeen
 
 *163] COLUMBIA, JANUARY, 1835. 131 
 
 them hefore the death of the said George, he xcould continue to act in 
 the capacify aforesaid, until the time of his death, at ivhich time your 
 orator should be paid over such balance as mvjht be remainimj in his 
 hands at that time.'" This statement was, in legal effect, an agency or 
 legal trust, to keep the money of the *plaintiff and defray his debts r.^ 
 and expenditures, and pay over the balance unexpended before or L 
 after his death, on demand. In the former opinion of this Court in this 
 case, it was held that until a demand made on the defendant's testator to 
 pay over the funds in his hands, and a refusal to do so, that the statute 
 of limitations did not commence to run ; and that there being no demand 
 alleged, or proved to be made, until after the testator's death, that the 
 statute of limitations could not run. 1 Hill's Chan. Rep. 62. The 
 case, under these views, would seem to have no pretence to claim interest 
 as of course. For the funds in the hands of the defendant's testator are 
 to be regarded as a mere deposit, upon which the plaintiff was at liljerty 
 to draw as he needed. It was no part of the duty of the defendant's tes- 
 tator to let the money out to interest, and thus make interest. This is a 
 trust between parties, who regulate it for themselves. The law prescribes 
 no duty to the agent beyond the discharge of his trust according to the 
 terms of his contract. In the cases of executors, administrators, guar- 
 dians, and trustees, appointed by law, it is their duty generally to make 
 interest ; and hence, from this, but more especially from the fact of being 
 required to make up their accounts annually, they are held to be generally 
 liable for interest on annual balances. Cases, therefore, charging them 
 with interest, have no application to this question. 
 
 Being an agency or trust ending only with the life of George Lever, 
 unless a demand had been sooner made for an account or settlement, I 
 think that interest can only be allowed from a demand made on the exec- 
 utor for an account and settlement after the death of Mr. Lever ; or, if 
 no such demand can be proved, then from the filing of this bill. 
 
 In the case of Wright v. Hamilton, which was an action against a 
 sheriff, who had been out of office for several years, for money collected 
 as sheriff', it was held that until a demand made, the plaintiff was not 
 entitled to interest. That decision proceeded upon the very footing that 
 this case must occupy. The defendant was guilty of no default until he 
 refused to pay over the money. 
 
 But it is contended, as I understand, that the use of the money by the 
 defendant's testator makes him liable for interest. This argument at first 
 struck my mind with great force, and I was inclined to think it would 
 govern the case. But I am satisfied, from subsequent examination and 
 reflection, that unless the defendant's *testator actually made in- r*-j/.x 
 terest upon the plaintiff's funds by loaning them out, or failed to '- 
 pay during his lifetime the debts or expenses of Michael, to his injury or 
 prejudice, he would not be liable for interest. 
 
 In the case of Williams v. Storrs, 6 John. C. R. 353, the defendant 
 was the agent for parties residing out of the State of New York. He 
 received their funds, and did not keep them separate from the funds which 
 he was receiving and paying away as agent. It was held that he was not 
 liable for interest. Chancellor Kent said, " it was sufficient if he kept the 
 money safely, and paid it according to the request of the party en titled 
 to demand and receive." In the case under consideration, this observa-
 
 132 SOUTH CAROLINA EQUITY REPORTS. [*165 
 
 tion of the Chancellor has a direct application, as will be seen by observ- 
 ing that George Lever must have kept, during his lifetime, the money of 
 the plaintiff safely, for he paid all his debts and expenses as he requested. 
 I don't mean to say that he kept the plaintiff's money locked up, but that 
 he was ready to pay as the plaintiff needed, which was exactly according 
 to the terms of the agency. 
 
 The case of Lord Salisbury v. Wilkison, 8 Yes. Jr. 48, as stated by 
 Lord Eldon, in the case of Lord Chedvvorth v. Edwards, is a direct 
 authority for the defendant. In that case Lord Thurlow held, " that 
 under the circumstances, the defendant could not be affected by a demand 
 of interest of the money he had in his hands, eveii siqypoaing he employed 
 it." The circumstances of the case were, that the defendant, the steward 
 of Lord Salisbury, had informed him from time to time of the sums of 
 money in his hands, and had undertaken that there should be always a 
 large sum in his hands, for which he would be responsible from time to 
 time. In this case, the plaintiff knew of the funds received by his father 
 as he received them ; and from the statement in his bill, the defendant 
 was to be always ready, if the plaintiff's situation should require it, to 
 pay over the balance in his hands. The cases, in their circumstances 
 controlling the allowance of interest, are almost identical. 
 
 There is another view of this part of the case. This was a debt pay- 
 able on demand, and according to Schmidtz v. Limehouse, 2 Bail. 276, 
 interest was not recoverable until demand made. I call it a debt not- 
 withstanding it is recoverable in equity ; for the defendant's testator was 
 liable for the balance left after auditing and allowing his accounts, as for 
 so much money received to the use of the plaintiff. In connection with 
 *lfiRl ^'"^ view, I would remark, *that the plaintiff, in setting out the 
 -^ agency, does not pretend that interest w'as to be paid ; if it was 
 to be paid in testator's lifetime, the testator was to "pay over wliatever 
 balance might be in his hands;" if not paid during his lifetime, the 
 plaintiff was to be paid at his death, " such balance as might be remain- 
 ing in his hands at that time." Under either of these statements of the 
 agency, it is plain that, according to the terms of it, the balance of the 
 money received was to be paid over. On the authority of the case of the 
 Earl of Hardwicke v. Vernon, 14 Ves. 510, 511, I think under this 
 statement of his case, the plaintiff cannot claim interest sooner than a 
 demand of payment from the executor after the death of George Lever. 
 We think therefore that this exception must be sustained and the report 
 remodelled by striking out the interest in favor of both the plaintiff and 
 the defendant, until a demand was made after the death of George Lever, 
 or the filing of the bill. From one or the other of these times, the plain- 
 tiff is entitled to interest on the balance in hand at the death of George 
 Lever. 
 
 5th. The defendant's 5th exception is untenable. In the case of 
 Cripps V. The Assignees of Charles Pinckney, cited and stated in Muck- 
 enfus V. Heath, 1 Hill's Chan. Rep, 182-3, the Court, speaking of the 
 claim of commissions, says, "but thepHuate agent or assignee of an indi- 
 vidual is not entitled to mii/ such claim, unless he makes it part of his 
 contract." This decides the point before us, and when it is recollected 
 that the defendant's testator accounts without interest, there can be no 
 hardship in requiring him to do the business of a weak-minded son, 
 without compensation by way of commissions.
 
 CASES IN CHANCERY 
 
 ARGUED AND DETERMINED IN THE 
 
 COURT OF APPEALS OF SOUTH CAROLINA 
 
 dL^arleston — (februarir, anb P^artlj, 1835. 
 
 JUDGES PRESENT. 
 
 Hon. DAVID JOHNSON, Presiding Judge. 
 Hon. J. B. O'NEALL. I Hon. WILLIAM HARPER. 
 
 John Welsh v. Patrick Usher and others, his Attaching Creditors. 
 
 Where one, by power of attorney, authorized another to sell and convey a ship, and 
 the attorney sold and received payment, but by mistake or ignorance execu- 
 ted the bill of sale in his own name instead of his principal's, in consequence 
 of which it was declared void at law: — Held, that although the bill of sale could 
 not operate as a conveyance at law, it was such an agreement as a Court of Equity 
 ■will cnrry into effect against creditors of the vendor who had subsequently ob- 
 tained legal liens. [*168] 
 
 An endorsement on a ship's register at the time of sale, that "the vessel should not 
 be sold until the notes given for the purchase money were paid," constitutes an 
 equitable mortgage, especially when the ship's register was left with the vendor. 
 L*170] 
 
 The plaintiff, Welsh, sold to Patrick TJsher the brig Junietta, and, at 
 the time of sale, an endorsement was made on her register that "the 
 vessel should not be sold until the notes given for the purchase money 
 were paid ;" and the register was left in Welsh's possession. Some time 
 after, Patrick Usher gave to his brother, Wm. Usher, a power «of attor- 
 ney, authorizing him to sell his property ; and he accordingly executed a 
 bill of sale for the Junietta to the plaintiff, John Welsh, and in payment 
 received the notes given for the original purchase money. In the bill of 
 sale, he used the words " I, Wm. Usher, attorney in fact of Patri'ck 
 Usher, owner of the brig Junietta, &c., do grant, bargain and sell," and 
 he signed "Wm. Usher, attorney for Patrick Usher." The vessel was 
 at sea at the time, and on her arrival at port in Charleston, she was 
 attached by the creditors of Patrick Usher, as his property. The plaintiff, 
 Welsh, then interposed his claim, upon the ^grounds : 1. That by r*i />q 
 the endorsement on the register, he retained a lien on the vessel, •- 
 for the purchase money. 2. That by his bill of sale he was the owner; 
 and that the attaching creditors had no rights superior to the debtor, 
 Vol. 1.— 32
 
 134 SOUTH CAROLINA EQUITY REPORTS. [*168 
 
 Patrick Uslier. This claim was resisted by the creditors on the grounds : 
 1. That the endorsement on the register was a mere agreement not to 
 sell, and did not amount to a lien. 2. That the bill of sale was not the 
 deed of Patrick Usher, because it was executed in the name of Wra, 
 Usher, and not in that of his principal ; it was therefore void. The case 
 was tried at law, and taken to the Court of Appeals, where these posi- 
 tions of the creditors were sustained : 1 Hill, 155. The present bill was 
 then filed, setting forth these facts, and insisting : — 1. That although the 
 bill of sale was" void at law, as the deed of Patrick Usher, it was his 
 agreement, entered into by his authorized agent, who having received the 
 payment, his principal was bound ; and such agreement being valid, a 
 Court of Equity would supply the defective execution, and compel Patrick 
 Usher now to execute a perfect conveyance. 2. That the endorsement 
 was intended as a lien, and should be supported by the Court as an 
 equitable mortgage against the party, or his creditors, — and prayed that 
 Patrick Usher be decreed to perfect the title to the brig ; that the en- 
 dorsement be decreed a mortgage, and that the attaching creditors be 
 perpetually enjoined at law from prosecuting their claims. 
 
 The cause was heard in Charleston, before Chancellor De Saussure, 
 who refused the injunction and dismissed the bill : and from his decree 
 the plaintiff appealed. 
 
 Hunt and Thomson, for the plaintiff. i 
 
 Petigru and Dunkin, for the creditors. 
 
 Harper, J. I am of opinion, that the deed executed by William 
 Usher, though it could not, as has been decided, operate at law as the 
 conveyance of Patrick Usher, must be executed in Equity as the agree- 
 ment of Patrick Usher ; certainly it is such an one as the Court would 
 execute as against Patrick Usher himself, and his legal representatives. 
 This is not a reforming of the instrument, but goes on the familiar equity 
 ♦ITQI principle, that when ^property is attempted to be transferred by 
 ^ deed, and there are circumstances to prevent its operating as a 
 conveyance, equity will give it effect as an agreement ; as in the case of 
 Colman v. Sarrell, 1 Yesey, Jr. p. 409; 3 Bro. C. C. 12, where Bank 
 Stock, which could only be transferred legally on the books of the Bank, 
 was attempted to be by deed, there is no question but that the Court 
 would have executed it as an agreement, if there had been a sufficient 
 consideration, and in Wadsworth v. Wendell, 5 Johns. C. R. 224, where 
 land was attempted to be conveyed by an instrument having in other 
 respects the form of a conveyance, but, in consequence of " mistake or 
 ignorance," as the Chancellor expresses it, without a seal. The rule is 
 laid down generally in Morse v. Faulkner, 1 Anst. 11, that an agreement 
 to convey, or a deficient conveyance, will bind the lands iu the hands of 
 the grantor or his heirs. 
 
 Now, there is no doubt that William Usher had authority to convey 
 this vessel. He attempted to convey by deed, but, by mistake or igno- 
 rance, executed the deed in his own name. If an agent contracts in his 
 own name, without disclosing his principal, the general rule of law is, 
 that the principal, if afterwards discovered, is liable on that contract: 
 Waring v. Favenck, 1 Campbell's N. P. R. 85 ; Rymer v. Suwercrapp^
 
 *169] CHARLESTON, FEBRUARY, 1835. 135 
 
 lb. 109 ; Railton v. Hodgson, 4 Taunt. 5V6. If William Usher, there- 
 fore, had only agreed to convey in his own name, and without reference 
 to his principal, it follows that the principal would have been bound ; but 
 he does refer to his principal. The terms of the deed are, "I, William 
 Usher, Junior, attorney in fact of Patrick Usher, owner of the hv'igJuni- 
 etta,^^ &c. From a technical legal principle, and from the manner in 
 which the deed is signed, this cannot operate as a conveyance at law ; 
 but can there be any doubt as to what was meant ? And what is there 
 to prevent equity giving effect to that intention ? The words " attorney 
 in fact of Patrick Usher," are regarded at law as terms of description and 
 surplusage ; and when an executor sells the goods of his testator, and 
 takes a bond payable to himself, as executor, at law this is regarded as 
 his personal debt, and the terra " executor," as a word of description. 
 But is there any doubt that in equity this signifies the trust, and that the 
 bond will be regarded as assets of the estate ? I cannot conceive a case 
 in which equity ought to aid a defective conveyance, if not in this. 
 
 *I think, also, with the deference which I always feel towards the |-^, ^^ 
 judgment of the Chancellor who pronounced the decree, that the ^ * 
 endorsement on the ship's register constituted an equitable mortgage, and 
 gave an equitable lieu ; Lord Hardwicke, in Lowthall v. Tonkins, 2 Eq. 
 Ca. Ab. 381, explains what is meant l)y goods being bound by an execu- 
 tion ; that is, he described the lien of an execution, " that, if the defend- 
 ant makes an assignment of his goods, unless in market overt, the sheriff 
 may take them in execution." To say, then, that the vendee shall not 
 have power to sell, is in terms to say that the vendor shall have a lien. 
 This could not operate as a mortgage at law, because it did not change 
 the property, and it would therefore be regarded as nothing else than a 
 personal contract ; but so to regard it in equity, would be to render it 
 absolutely nugatory and unmeaning. The vendor had already all the 
 security that the personal liability of the vendee could give him. This 
 construction is aided by the circumstance of the vessel's register being left 
 in Welsh's possession. I need not refer to the cases in which the deposit 
 of title deeds is held, to constitute an equitable mortgage, to which this 
 seems very analogous. 
 
 This equity, though existing, could not prevail against a subsequent 
 purchaser for valuable consideration, without notice. The only matter 
 on which it struck me there might be a doubt, was, whether it could pre- 
 vail against creditors who had subsequently obtained legal liens. But a 
 reference to authorities puts this out of question. In Burgh v. Francis, 
 referred to in Taylor v. Wheeler, 2 Vernon, 564, the defect of livery in 
 making a mortgage, was supplied against judgment creditors. In Finch 
 V. The Earl of Winchelsea, 1 P. W. 27T, it was held that an agreement 
 to convey, on adequate consideration, would be good against a subsequent 
 judgment. In Burn v. Burn, 3 Vesey, 582, the case of Sir Simeon Stuart 
 is referred to, in which an incomplete agreement to mortgage was made 
 . good against a judgment. To the same effect were our own decisions, in 
 Read v. Simmons, 2 Eq. Rep. 454, and Menude v. Delaire, 2 Eq. Rep. 
 565. In Taylor v. Wheeler, the defect of a surrender in a mortgage of 
 copyhold was supplied against the assignees of the bankrupt mortgagor ; 
 here the complete legal title was in the trustees of the creditors. The 
 Chancellor at first doubted, but said that the creditors would be entitled
 
 136 SOUTH CAROLINA EQUITY REPORTS. [*170 
 
 to no more than was properly the bankrupt's. I need hardly observe, 
 ^,f.,-| that there is *no question of notice or want of notice to creditors 
 -^ where fraud, arising out of the possession of the mortgagor or 
 vendor, is relied on. I do not find the precise case of an attachment, but 
 there cannot be a doubt that it must be governed by the same principles. 
 Its lien cannot be of a higher nature than that of a judgment and execu- 
 tion. It holds the property that it may be rendered liable to execution. 
 It could not take the property against the lien an of older execution, 
 against which, however, the equitable claim would prevail. Still stronger 
 is the case of the bankrupt's assignees. It was a ground of the decision 
 at law, that if any equitable lien existed, the remedy was in equity, and 
 the plaintiff cannot be repelled, now that he comes into equity to seek it. 
 It is therefore ordered and decreed, that the Chancellor's decree refusing 
 the injunction, be reversed, and that the defendants, attaching creditors 
 of Patrick Usher, be enjoined from proceeding against the Junietta. 
 
 Johnson, J., and O'Neall, J., concurred. 
 
 Wm. Bartlett and Wife, Adm'r and Adm'x of Thos. Wurtz, v. Wm, 
 
 Thynes. 
 
 A release given by a weak man, to his general agent on final settlement, under the 
 circumstances sustained in bar to a bill for an account. [*174] 
 
 Where mortgaged negroes were, by an agreement endorsed on the mortgagee, left in 
 possession of the mortgagee, and to continue there in lieu of interest until the 
 debt is paid, no length of time will bar the right of redemption. [*178] 
 
 Sucb an agreement is not usurious unless the value of the hire so far exceed the 
 interest as to manifest a corrupt intent. [*179] 
 
 Charleston.— April, 1833. 
 
 De Saussure, Chancellor. It appears that the late Thomas Wurtz 
 was a weak man, and so habituated to intoxication as to render him 
 incapable of managing his own affairs. The Honorable Wm. Johnson, 
 Judge of the Supreme Court of the United States, for some time kindly 
 took care of him and his affairs, and protected him from injury by others. 
 It being inconvenient to him to continue this superintendence, which also 
 required closer and more personal inspection than he could bestow, he 
 gave it up, but advised that Mr. Wm. Thynes should be employed for 
 the purpose. This being agreed to, Judge Johnson drew up an agree- 
 ment, in his own handwriting, between Thomas Wurtz and Wm. Thynes, 
 which bears date 9th August, 1816, and is duly executed under seal by 
 both parties, Judge Johnson being a subscribing witness thereto. By 
 this instrument it is stated that Thomas Wurtz was entitled to seventeen 
 ♦ITSI slaves and a sum of money for *the sale of some land on John's 
 -^ Island, and the hire of his slaves, and that being conscious of his 
 inability to conduct a plantation without instruction and assistance, he 
 therefore agreed to constitute William Thynes his sole absolute agent and 
 attorney, to transact his affairs in his name and for his use, and to allow 
 him one-half of the profits arising from his property, in full compensation 
 for his services ; and William Thynes, on his part, agreed to negotiate
 
 *172] CHARLESTON, FEBRUARY, 1835. ' 137 
 
 on behalf of the said Thomas Wurtz, the purchase of a suitable tract of 
 land, to be paid for out of the nior.eys of the said Thomas, and to remove 
 to the same and settle and plant thereon with the nc,<^roes of the said 
 Thomas, and faithfull}^ to account to him for the proceeds thereof; and, 
 in the mean time, that the said Thomas should be boarded in the house 
 of the said William, and be allowed i-easonable lodging, board and cloth- 
 ing, and pocket money. The agreement to remain in force, and be irre- 
 vocable for and during the term of fourteen years, during which time the 
 said William Thynes shall apply annually the dividends of the said 
 Thomas, to the purchase of such property as may be deemed bene- 
 ficial, and take parental care of him in sickness and in health. 
 
 In pursuance of this agreement, William Thynes took possession of the 
 estate and effects of Thomas Wurtz, and managed the same ; and on the 
 20th December, 1822, they both executed a deed, or instrument of writing, 
 by which they stated that they had an accounting settlement together, of 
 and concerning the agency and management of the property of said 
 Thomas Wurtz, had and exercised by the said William Thynes, under 
 the power of attorney of 9th August, 1816, and that upon such account- 
 ing, the said Thomas Wurtz was found indebted to the said William 
 Thynes in the sum of $675 ; whereupon it was agreed that the said power 
 of attorney should be cancelled, and that the said Thomas Wurtz should 
 pay -or secure to be paid to the said William Thynes, the said sum of 
 $6*75 ; and the said William Thynes, in consideration of the said $675, 
 (to be paid or secured,) relinquished all interest and benefit under the said 
 power, and consented that the same should be cancelled, and Thomas 
 Wurtz discharged from all further demands on account of said property ; 
 and Thomas Wurtz covenanted and agreed, and did exonerate and dis- 
 charge the said William Thynes from all and every other and further 
 account, reckoning, claim or demand, of what claim or nature whatsoever, 
 which he *had or might have by reason of his agency aforesaid, rrjci-o 
 or for any other account whatever. ^ ' 
 
 Attached to and forming part of this instrument, there was another 
 paper signed by Wm. Thynes, under seal, dated 20th Dec. 1822, by 
 which he acknowledged to have received of Thomas Wurtz a promissory 
 note for $475, payable on 1st January, 1824, and that two slaves, little 
 Jack and Hester, mortgaged to secure the payment thereof, were in his 
 possession, where they were to continue in lieu of interest, until said note 
 be paid ; upon which payment he promised to deliver to the said Tlioinas 
 Wurtz, his executors, administrators and assigns, the said slaves, with the 
 issue and increase of the females, if any, without delay or default ; the 
 purport of which receipt is endorsed on the mortgage given to him, the 
 said William Thynes. A copy of the mortgage thus referred to accom- 
 panied the proceedings, and is in the usual form, dated 20th Docoml)er, 
 1822, by which Thomas Wurtz mortgaged the two slaves, little Jack and 
 Hester, to William Thynes, to secure the payment of $475, due on his 
 promissory note, with interest, payable 1st January, 1824, and in default 
 of payment, the said slaves to be sold, and the surplus, if any, paid over 
 to said Wurtz. Mr. Joseph Bennett, a practising attorney of reputation, 
 appears to have drawn and witnessed these papers. 
 
 At the hearing of the cause, the deeds and instruments of writing were 
 given in evidence. Mr. Robert Green, a witness, testified that he knew
 
 138 SOUTH CAROLINA EQUITY REPORTS. [*173 
 
 the negroes, Jack and Hester. Jack was likely and prime — was patroon 
 of Tliynes' boat for a year or two ; also, worked on Thynes' farm — was 
 good for any work. The general hire for boatmen is $12 or $14 per 
 month — field slaves worth from $40 to $60 per year. Hester worked 
 chiefly about the house — worth about as much as ordinary slaves. She 
 had two children. Both Hester and Jack in the prime of life. On his 
 cross-examination, he stated that when he first knew him, Jack was a 
 boy. When Thynes first had him, hired him at seven dollars per month — 
 lie fed and clothed them. Wurtz left Thynes when he got married in 
 1819. The mortgage was in 1822. Witness did not know of any deal- 
 ings between them. The two slaves were worth $100 per year, for the 
 last five years. Common boat hands earn $12 per month. Wurtz was 
 a weak man, the most foolish he ever knew. 
 
 Mr. Lance testified that he knew Wurtz ; he was a very weak man, an 
 imbecile, and almost an idiot. He forgot what he had done — sometimes 
 he spoke well and with some acuteness. 
 
 ^ -, *The pleadings in this case are not made up with the accustomed 
 -I accuracy of the bar. There is no prayer to the bill, and it is stated 
 to the Court, that the parties agreed the cause should come on, as if the 
 common prayer was inserted. 
 
 Two questions were made in this case : — 
 
 1st. Whether the plaintiff is entitled to a general decree for an account, 
 or was barred by the settlement and release in December, 1822. 
 
 2d. Supposing the release obligatory, is the demand of the plaintiff to 
 redeem the mortgaged slaves, on payment of the debt due by Wurtz to 
 Thynes on note of hand, well founded, or is the right to redeem barred ? 
 
 There is no doubt that Wurtz was a weak man, incapable of much 
 mental exertion, but not an idiot. Judge Johnson, who knew his infirm- 
 ity, advised the contract and arrangement with Thynes, and actually drew 
 up the agreement in his own handwriting, and of course knew and 
 approved the terms. This proves that he, who was a most competent 
 judge, did not consider Wurtz incapable of forming contracts which 
 should be obligatory upon him, and that he thought Thynes a good man, 
 fit to be intrusted with such a charge and such a power as was confided 
 to him by Wurtz. Until Wurtz's marriage in 1819, he appears to have 
 lived contentedly with Thynes under the agreement. After that he went 
 away, and the difference of his situation rendered it difficult to carry the 
 agreement regularly or satisfactorily into execution. Accordingly, the 
 parties came to a settlement in the year 1822. The power to Thynes 
 was agreed to be cancelled, the parties had some accounting, and the 
 balance of $615 was struck as due to Thynes. A release was executed 
 by Wurtz, and he gave his note for the sura of $475, part of the said 
 balance, with a mortgage of two slaves. It was this release which was 
 attempted to be set aside. The bill, however, does not allege fraud in 
 obtaining it. It does not allege false accounts or misrepresentations. 
 It does not attempt even to surcharge and falsify. All, or most of this, 
 would be necessary to induce the Court to open the accounts, much more 
 to set aside the release. The settlement and release appear to have been 
 made under the direction of Mr. Joseph Bennett, a gentleman of char- 
 acter and judgment. I believe the release now before me is drawn up in 
 his handwriting, and I am bound to believe that he did not permit
 
 ♦I-? 
 
 174] CHARLESTON, FEBRUARY, 1835. 139 
 
 Thynes to practice a fraud on the weak Wurtz, of which *thcre r^, ^- 
 is no sufficient proof. There is no moral or technical ground on L 
 which I am at liberty to set aside this release. 
 
 The next question relates to the mortgage of the two slaves to secure 
 the payment of the note of hand for $415. For it seems that $200 of 
 the balance of $675 must have been settled in some other way, or given 
 np voluntarily. 
 
 The deed, or instrument, bearing date 20th December, 1822, from 
 "Wurtz to Thynes, recites that the former was indebted to the latter by 
 note, for $475 payable 1st January, 1824, and the better to secure the 
 payment, conveyed to said Thynes the slaves little Jack and Hester, 
 with proviso, that if the debt, with the interest thereon, be paid on or 
 before 1st January, 1824, then the mortgage to be void ; and in default 
 of payment, Thynes was authorized to sell and dispose of the said slaves, 
 and apply the proceeds to pay the said note, with interest, returning the 
 surplus, if any, to Wurtz. Thynes, at the bottom of the mortgage, wrote 
 an acknowledgment of the receipt of the slaves, and his possession of 
 them, to be held in lieu of interest, until the note should be pajd, on 
 which payment he promises to deliver up said slaves and their issue, if 
 any. 
 
 It appears to me to be unquestionable that this is a mortgage of the 
 slaves named in the deed, but so qualified by the receipt of Thynes (which 
 he cannot question) as to give it the character in some respects of a 
 vivum vadium. 
 
 Two questions were made on the argument. What is due to the 
 creditor? Is not the owner of the slaves barred by the statute of limita- 
 tions from recovering ? 
 
 The mortgage stipulates that interest is to be paid on the note. The 
 receipt of Thynes states that the slaves are to remain in his possession in 
 lieu of interest. There is then a discrepancy between the two instruments. 
 The Court prefers the plain, straightforward dealing for legal interest. 
 In many cases the use of the property left in pledge is worth a great deal 
 more than lawful interest. It is a temptation and a shelter to usury. 
 The Court therefore leans against that construction which would produce 
 those effects; and where the two papers speak a different language, will 
 prefer that which is most in the usual course of business, and most likely 
 to do justice between the parties ; and it will consider and treat this case 
 as a mortgage to pay a certain sum of money, with legal interest, and the 
 defendant to account for the hire and labor of the slaves. 
 
 *But, it is said for the defendant, that his possession of these r*pg 
 slaves has been so long continued since the note was due, (1st '- 
 January, 1824,) that he is protected by the statute of limitations. There 
 is a difficulty certainly on this part of the case. For if the instrument be 
 considered merely a common mortgage, morfuum vadium, then the 
 statute of 1712 vests the estate in the mortgagee. But if the receijit of 
 Thynes gives the instrument a qualified character, partaking of the vivum 
 vadium, then the bar from the construction of the statute does not api)ly.' 
 
 The cases are very numerous in which the Court has been obliged to 
 give construction to deeds in order to decide what was the nature of the 
 instrument, from the apparent intention of the parties, although the deeds 
 themselves did not distinctly mark their own character. A pawner of
 
 140 SOUTH CAROLINA EQUITY REPORTS. [*176 
 
 goods, ia nature of a vicum vadium, where no time is stipulated for a 
 redemption of them, has his whole life to redeem ; and if there be a time 
 fixed to redeem, and that has elapsed, the pawner may still redeem until 
 the thing pledged is sold. In the present case, the holder of the slaves 
 might have sold when the time of payment arrived, (1st January, 1824,) 
 but until the sale the debtor may redeem. 
 
 It is therefore ordered and decreed, that it be referred to the Commis- 
 sioner, to ascertain how much is dne by the estate of Wurtz, to Thynes, 
 on the note, with interest thereon ; and that an account be taken of how 
 much should be allowed for the hire and labor of the two slaves, little 
 Jack and Hester, and that the same shall be deducted from the amount 
 of the said note and interest ; and that the balance, if any, be paid by 
 the representatives of Wurtz to Wm. Thynes ; and if not paid, on report 
 made and confirmed, that the said slaves be sold by the Commissioner, at 
 public sale, for cash, and the surplus, if any, be paid to the representa- 
 tives of Wurtz. Costs to be paid out of the sale of the slaves. 
 
 The defendant appealed on the following grounds : — 
 
 1. That the agreement between the parties was fairly executed on good 
 consideration, and is valid ; and it expressly stipulates that there shall be 
 no account for the labor of the negroes. 
 
 2. That if the agreement is not valid, the plaintiff is barred by the 
 statute of limitations. 
 
 3. That the defendant being a mortgagee in possession for more than 
 two years after the time fixed for payment, the right of redemption is 
 barred by the act of 1712. 
 
 ^,Hh.-i ^Memming'r, for the appellant, contended that the Chancellor 
 -■ had, by his decree, made an agreement for the parties different 
 from that they had entered into. From the time the release was exe- 
 cuted, they stood indifferent to each other — their former relation ended : 
 and it was then agreed that the mortgaged negroes should go into 
 defendant's possession, and their labor be in lieu of interest. If the 
 mortgage and agreement be void, the plaintiff can bring trover, and this 
 Court has no jurisdiction, and in such case the defendant would be pro- 
 tected by the statute of limitations. If they are valid, they constitute 
 either a common or qualified mortgage ; if the former, the plaintfif's right 
 to redeem, after two years' possession from the time of condition broken, 
 is barred by the Act of 1812; 1 Brev. Dig. 70. Mortgagee, after con- 
 dition broken, may bring trover; Montgomery v. Kerr, 1 Hill, 291. 
 Length of time by analogy to the statute of limitations is a bar ; 2 Atk. 
 362 ; 2 Ball & Beatty, 402. Regarding the transaction as a qualified 
 mortgage, the interest must be set oft" against the labor of the slaves, and 
 there is an end to the account. It cannot be usurious, for with the risks 
 incurred the labor would not be more than an equivalent for common 
 interest. But, if it were usurious, the doctrine of equity is, that the 
 principal and lawful interest shall be paid ; Stat. Rep. 408 ; 1 Ves. jr. 
 »527. 
 
 Hunt, contra, insisted that the defendant is to be regarded as a 
 trustee in possession, and dea'ling with his cestui que trust, (a weak man 
 over whom he has great influence) for the trust property. Under 
 such circumstances this Court will not sustain the mortffapre and a^ree-
 
 *177] CHARLESTON, FEBRUARY, 1835. 141 
 
 ment, unless it be shown that the transaction was fair, just and reasonable. 
 This, he argued from the value of the hire of the negroes, it was not ; 
 but on the contrary, unconscientious and usurious. If usurious, the act of 
 ltl2 does not apply. But the agreement qualifies the mortgage, and 
 gives the party an unlimited right of redemption. 
 
 Johnson, J. The question growing out of the grounds of this 
 motion, are : — 
 
 1. Whether the plaintiffs' right to redeem the slaves, Jack and Hester, 
 and for an account of their hire, is not barred by time. 
 
 2. Whether the defendant is, in any event, bound to account for their 
 hire during the time he has had them in possession. 
 
 *1. The defendant has been in possession of the slaves from r*i*70 
 1822 down to the present time, and that provision of the act of ^ 
 1712, Pub. Laws, 101-2-3, which limits the bringing of the action of 
 trover to four years after the cause of action arose, and also that which 
 limits the right of the mortgager of slaves to redeem to two years after 
 condition broken, when the mortgagee is in possession, are both relied on 
 in support of the affirmation of the first proposition, but neither of them 
 will sustain it. It is a familiar rule that the general provisions of the 
 statute of limitations will not operate as a bar, unless the possession of 
 the chattel is against the will, and adverse to the rights of the party 
 claiming. Here the defendant's possession of the slaves commenced with 
 the consent of the plaintiff's intestate, and by the terms of the agreement 
 endorsed on the mortgage he was to hold subject to the uses, and upon 
 the terms therein expressed : so that the operation of the general pro- 
 visions of the statute must be resolved, not according to the time when 
 the defendant obtained the possession, but according to legal efTect of 
 the mortgage and the agreement thereon endorsed. The time fixed by 
 the mortgage for the payment of the money was the first of January, 
 1824, and the mortgager not having redeemed within the two years pre- 
 cribed by the act, the right to redeem, if that depended on the legal effect 
 of the mortgage alone, would unquestionably have been barred, and it 
 was so ruled in Montgomery v. Kerr, 1 Hill, 291. But I concur with 
 the Chancellor that the legal effect of the mortgage, in this particular, is 
 counteracted by the agreement endorsed upon it. By this, the defendant 
 acknowledges to have received the slaves mortgaged "in lieu of the 
 interest" on the money owing, and that they were to continue in his pos- 
 session " until the said notes be paid, upon which payment I promise and 
 declare that I will deliver to the said Thomas (the plaintiff's intestate) 
 the said slaves, with the issue and increase, if any there should be, with- 
 out delay or default." Without this agreement, defendant would have 
 been bound, according to the legal effect of the mortgage, to have 
 delivered up the slaves to the plaintiffs, or their intestate, on the payment 
 of the money, at any time within two years after condition broken, and 
 the agreement is an idle and useless repetition of the terms of the mortgage, 
 unless it was intended to extend the time of redemption beyond the time 
 limited by the act ; and such is the necessary import of the terms used. 
 The slaves were to continue *in possession of the defendant in r*i itq 
 lieu of interest " until the said notes be paid up, on which pay- ^ 
 ment" he was to redeliver them to the plaintiffs' intestate, without
 
 142 SOUTH CAROLINA EQUITY REPORTS. [*179 
 
 reference to the time fixed by either the note or mortgage ; and it is 
 impossible to give it any effect, but by construing it into an agreement to 
 permit the intestate to redeem without any limitation as to time : the 
 limitation of two years provided for in the statute cannot therefore 
 operate as a bar. 
 
 2. The agreement before referred to, expresses very clearly the inten- 
 tion of the parties that the services of the slaves should be received by 
 the defendant for the interest of the money secured to be paid by the 
 mortgage, and if that contract is valid, there can be no question that 
 defendant is not bound to account for their hire. But a supposed 
 inequality between the value of the services of the slaves and the amount 
 of interest, is the foundation of an allegation on the part of the plaintiffs 
 that the contract was usurious and void, and therefore they are entitled to 
 an account. 
 
 The statute against usury would avail but little, if it could be evaded 
 by the substitution of something else than money for the interest, with- 
 out regard to its value, and consequently all attempts of that sort have 
 utterly failed. When the thing substituted is confessedly of greater 
 value, or where, although the value is contingent, the probable result so 
 far exceeds the amount of interest as to manifest a corrupt intent to 
 secure a greater rate of interest than is allowed by law, the contract is 
 usurious. Thus, if one lend £100 to have £120, at the year's end on a 
 casualty ; if the casualty goes to the interest only, and not to the princi- 
 pal, it is usury, for the party is sure of the principal, come what will of 
 the interest ; but if the principal and interest are both in jeopardy, it is 
 not then usury — Per Dodridge J. Cro. Jac. 508 ; 5 Co. 19, as cited in 
 Com. Dig. Usury, A. ; (see also Morse v. Wilson, 4 D. & E. 353.) So 
 that if the value of the services of these slaves so far exceeded the amount 
 of interest as to authorize the conclusion that it was a device to avoid 
 the statute against usury, the contract is unquestionably void. The evi- 
 dence of the value of the hire at the date of the mortgage is not very 
 clear. In his answer, the defendant states that they were then mere 
 children, eight or ten years old, and not worth the interest ; and the only 
 evidence on the point noticed in the decree, pointing directly to that 
 period, is, that Jack was then a boy ; and although the same witness says, 
 in connection with it, that he hired him at the rate of seven dollars per 
 *1801 ^'O'^^^^' 1^6 *evidently referred to a subsequent period ; so that the 
 -' reasonable inference is, that during all the time intervening be- 
 tween the date of the mortgage and the time of payment, the value of 
 hire did not exceed the amount of interest — not so far, at any rate, as to 
 authorize the inference that there was an usurious intent in substituting 
 their services for the interest. The contract was therefore legal in its 
 inception, and no subsequent adventitious circumstance, superinduced by 
 the neglect of the plaintiff's intestate to pay the money within the time 
 limited in the mortgage, could render it illegal ; and notwithstanding the 
 apparent equity of requiring the defendant to account for the subsequent 
 increased value of the hire, that would be to substitute a new contract 
 between the parties — a power which this Court explicitly disclaims. 
 
 So much of the decree of the Circuit Court as directs an account of 
 the hire of the slaves is therefore reversed, and in all other respects it is 
 affirmed. 
 
 O'Neall, J., and Harper, J., concurred.
 
 *180] CHARLESTON, FEBRUARY, 1835. 143 
 
 M'Cartney & Gordon and others, v. Jas. Ferguson, trustee, and M. 
 
 PoGSON and wife. 
 
 It is indispensably necessary by the Act of 1792, that a marriage contract should 
 specify the property intended to he settled, or have a schedule annexed con- 
 taining a description thereof, which schedule must be signed and subscribed 
 by the witnesses to the contract: and therefore, when a marriage contract was 
 signed with a schedule annexed, which was neither signed nor witnessed, and 
 they were recorded within the legal period; and in conformity to the contract, 
 a settlement was afterwards entered into, which was not recorded until after the 
 time prescribed by law, it was held, that the contract and schedule were not a 
 compliance with the act, and the settlement not being recorded in due time, the 
 property was liable to the debts of the husband subsequent to marriage. [^181] 
 
 Charleston — Heard by Chancellor De Saussure. 
 
 Henrietta Wragg being possessed of some personal estate in her own 
 right, and entitled to an undivided share of her father's estate, was about 
 to intermarry with M. Pogson. In contemplation of this event, Mr. 
 Pogson entered into a bond to the trustee on 6th Feb., 1805, in which, 
 after setting forth a statement of Miss Wragg's property, he covenants to 
 settle the same on her, without liability for his debts. This bond was 
 duly recorded in the office of the Secretary of State, 15th April, 1805. 
 A schedule was annexed to the bond, but this was not signed by the par- 
 ties, or subscribed by the witnesses to the bond. On the 24th April, 
 1806, a settlement was executed, which was recorded in the Register's 
 Office, 15th July, 1806, but not in the office of Secretary of State until 
 14th Oct., 1809. 
 
 In 1827, the plaintiffs sold Mr. Pogson some articles proper for a 
 ♦plantation, and took his note therefor, on which they afterwards r^in-i 
 obtained judgment. There being no property to satisfy it at law, ^ 
 they filed this bill to subject the trust estate to the payment of their 
 demands. The Chancellor decreed that the marriage contract of 6th 
 Feb., 1805, was void as to creditors, because the schedule was not signed 
 and witnessed ; and the subsequent settlement not having been recorded 
 within the legal time, afforded no protection to the property, and he sub- 
 jected the income of the estate to the payment of the plaintiffs' demands. 
 
 The defendants appealed on the grounds : — 
 
 1. That the marriage contract of 6th Feb., 1805, was executed and 
 recorded according to the provisions of law, and should have been sus- 
 tained. 
 
 2. That the marriage contract having been properly executed and 
 recorded, it was unnecessary to record the deed of settlement of the 24th 
 April, 1806, except to protect the property from subsequent purchasers. 
 
 3. That by the provisions of the settlement, the property was not to 
 be liable for the debts of the husband, and the demands of the plaintiffs 
 being of that character, the bill should have been dismissed. 
 
 Dunkin, for the appellants. 
 
 O'Neall, J. The act of 1792, 1st Faust, 210, provides, "that all 
 TYiarriarje contracts, deeds, and settlements, to be made after the first day 
 of June next, shall therein describe, specify, and particularize the real and 
 personal estate thereby intended to be included, comprehended, conveyed, 
 
 I
 
 144 SOUTH CAROLINA EQUITY REPORTS. [*181 
 
 and passed, or shall have a scJuduIe thereto annexed, containing a de- 
 scription and the particulars of the real and personal estate intended to 
 be conveyed and passed by such marriage contracts, deeds, and settle- 
 ments ; which said schedule shall be thereunto annexed and signed, 
 executed and delivered by the jyarties therein interested at the time of 
 the signing, executing, and delivering the said marriage contracts, 
 deeds, and settlements, and he subscribed by the same witnesses who 
 subscribed the said marriage contracts, deeds, or settlements, and shall 
 be recorded therewith, otherwise, and in default of such schedule, and 
 5^, nni recording thereof *as aforesaid, the said marriage contracts, deeds, 
 
 -' and settlements shall be, and are hereby deemed and declared to 
 be fraudulent, and null and void with respect to and against creditors 
 and bona fide purchasers and mortgagees : provided, that where any 
 marriage settlement shall be made previous to marriage, nothing herein 
 contained shall be construed to extend to make the property settled 
 thereby liable in default of a schedule, or not being duly recorded, to the 
 payment of any debts contracted by any husband previous to such mar- 
 riage, but only to such debts and contracts as shall have been incurred 
 and made by the said husband subsequent to the marriage taking place." 
 The result of the case under this legal provision depends upon the ques- 
 tion whether the marriage settlement bond, as it is called in the decree, 
 was executed and recorded in conformity to the act, so as to make it a 
 good and valid antenuptial marriage contract as against subsequent cre- 
 ditors. For the deed of marriage settlement, executed according to the 
 stipulations of the bond, was not lodged to be recorded in the Secretary 
 of State's office until long after the time limited by the act of '85, and 
 is therefore void as against the creditors of the husband. So that it is 
 necessary to look back to the marriage contract. 'It is in all respects 
 well executed and recorded, except as to the schedule, which is annexed 
 to the bond ; but it is not signed by the parties, nor subscribed by the 
 witnesses who subscribed the bond. These defects, according to the 
 plain words of the act, render the contract void as against subsequent 
 creditors. There is no room in the construction of the act to say that it 
 has been substantially complied with, and its ends answered, and there- 
 fore that the execution is sufficient. For the legislature have excluded 
 all construction by a supposed intention by the use of plain words, de- 
 claring that if the contract wanted any of these requisites it should be 
 void. In the construction of a statute, I know no rule more safe than 
 to adhere to the sense of the legislature as manifested by the plain and 
 literal meaning of the words used. To adopt any other rule would be to 
 legislate, not to construe. But if it be necessary to look beyond a plain 
 reading of the act, and to give construction to it, by something else than 
 the literal meaning of the words used, I think there will be no difficulty 
 in arriving at the same conclusion by other means. I think with the 
 Chancellor that were it not for the act, that the annexation of the sche- 
 dule to the bond and reference to it therein would make it a part of it, 
 *1831 ^"*^ '^^^ ^execution of the bond would cover the schedule : the 
 
 -■ act excludes this construction, by not only directing it to be an- 
 nexed, but also that it shall be signed, executed, and delivered by the 
 parties, and subscribed by the same witnesses who subscribe the contract. 
 This shows that notwithstanding its annexation, the legislature regarded
 
 *183] CHARLESTON, FEBRUARY, 1835. 145 
 
 it as a separate and distinct instrument from that to which it was annexed. 
 We are therefore not at liberty to make the execution and attestation of 
 the bond, the execution and attestation of the schedule. However unrea- 
 sonable this may appear on the first blush, yet, on reflection, it will be 
 seen that the legislature may be very well justified in adopting such pro- 
 visions. Their object was to prevent the possibility of frauds in the 
 execution of marriage settlements. A schedule annexed by tape, or seals, 
 or wafers, might easily be removed and another substituted, if it had 
 neither the signatures of the parties, nor the attestation of the witnesses 
 to identify it and to prevent substitution. Such a possibility most prob- 
 ably induced the legislation in this respect : and on some other occasion 
 we may admire more this legislative forecast, than we are now disposed 
 to condemn it as unnecessary and hard legislation. 
 
 I am hence satisfied that the marriage settlement bond or contract is 
 void, and cannot protect the property attempted to be settled from the 
 payment of the debts due by Milward Pogson to the plaintiffs. For, as 
 the learned Chancellor thought, (although he suffered his sympathies for 
 Mrs. Pogson and her children to lead him to a different conclusion,) it is 
 a refinement not to be sustained, to contend, that notwithstanding the 
 marriage contract is void, as against creditors, that yet being good be- 
 tween the parties, it will prevent the husband's marital rights from 
 attaching on the property, and thus save it from being made liable to pay 
 the husband's debts. The contract is void as against the creditors ; as 
 against them it is the same as if none existed, and the wife's property is, 
 so far as they are concerned, in the possession of the husband, without 
 any thing to prevent all his legal rights from arising in and attaching to 
 it. Her real estate is his during coverture, and her personal property 
 vests in him jure mariti. For the marriage contract cannot even be 
 read against his creditors. These views would make the corjius of the 
 estate liable to the plaintiffs' demands : but as they are content with the 
 Chancellor's decree against the income, there is no necessity to give them 
 any further remedy. It *is ordered that Chancellor De Saus- r^ig^ 
 sure's decree be affirmed. ^ 
 
 Johnson, J., and Harper, J., concurred. 
 
 George Edwards, and others v. M. S. Barksdale, and others. Henry 
 
 Bona v. the same. 
 
 Testator by his will directed, that his estate should accumulate for the benefit of 
 his son and daughter, "then on either of them arriving of age, or on the marriage 
 of my daughter prior to such period, that it be equally shared between them, 
 ■which they and their issue legally begotten are to enjoy forever; but in case of 
 the demise of my daughter, that the negroes I got through her mother ilo revert 
 to the children of P. S. L.; and likewise that such negroes I got by the mother 
 of my son to revert to II. B.:" and by another clause declared "that in case of 
 the death of my daughter and son prior to their being of age, or having issue, 
 that the whole of my estate be given to G. E. & E." E.:"—JIcld, that the following 
 is the true construction: — 1st. If the daughter should die before marriage or 
 maturity, that the negroes received by the testator from her mother should revert
 
 146 SOUTH CAROLINA EQUITY REPORTS. [*184 
 
 to the children of P. S. L.; 2cl. That if his son should die before the same event 
 ■without children, the negroes received by liis mother should go to H. B : 3d. 
 Tliat if both should die, the daughter before marriage or full age and the son 
 under age and without issue, then that the whole remaining estate should go to 
 G. E. & E. E. [*102] 
 The words of the devise to testator's son and daughter, will not create a fee con- 
 ditional in the real estate. The doctrine of fees conditional considered. [*196] 
 
 Coosawhatchie. — February, 1833. 
 
 Harper J. (sitting as Chancellor.) The will of George Barksdale 
 executed in 1798, contains the following clauses : — 
 
 " Respecting my real and personal estate, consisting of land and ne- 
 groes, now in my possession, I desire that the whole be kept together 
 and improved to the utmost of the abilities of my executors, for the 
 mutual benefit of my daughter, Mary White Barksdale, and my son 
 Thomas Henry Barksdale, (requesting that they may have the best edu- 
 cation that possibly can be had in South Carolina,) then on either of 
 them arriving of age, or on the marriage of my daughter, prior to such 
 period, I direct that the said estate with all its accumulation, may be 
 equally shared and divided between them, which they and their issue 
 legally begotten, are to enjoy forever ; but in case of the demise of my 
 daughter, my will is, that all such negroes as I am possessed of through 
 her mother, do revert to the children of Peter Samuel Lefitt, of Savan- 
 nah, to them and their heirs forever; and likewise that all such negroes 
 as I am possessed of through the mother of my son, do revert to Henry 
 Bona, to him and his heirs forever. 
 
 " Also in addition, it is further my will, that in case of the death of 
 my daughter Mary, and my son Thomas, prior to their being of age, or 
 having issue, that the whole of my estate be given to George Edwards, 
 and Eliza Edwards, his sister, to them and their heirs forever." 
 
 Mary White Barksdale died in 1808, under age, and without issue, not 
 having been married. 
 
 Thomas Henry Barksdale came of age, and the executor surrendered 
 to him the whole estate. He died in 1832, not having had any issue. 
 *1S'S1 ^'I'lis plaintiff, George Edwards, claims in his own right, and he 
 -' and the plaintiff, Mary Holbrook, as the brother and sister and 
 next of kin of Eliza Edwards, under the limitation of the will to them. 
 They also claim as next of kin of Thomas Barksdale, in case the limita- 
 tion fails. 
 
 Henry Bona, the plaintiff to the second bill, claims under the bequest 
 to hiui, in case of the demise of Mary. He also claims the whole estate 
 as next of kin of Thomas Barksdale, he being in equal degree with the 
 other plaintiffs, and being of the whole, while they are of the half blood. 
 
 The first thing to be done is to discover, from the construction of the 
 will, what dispositions the testator intended to make, and next, what effect 
 the law will give to these dispositions. 
 
 The devise of the estate to Mary and Thomas Barksdale, "which they 
 and their issue lawfully begotten are to enjoy forever," would certainly give 
 them in England an estate tail in the lands, and in this country, gives 
 them a fee simple conditiofial, and the personal estate absolutely. 
 
 The provision, "but in the case of the demise of my daughter, my will 
 is," &c., if the words were taken alone would seem to import, that at what-
 
 *185] CHARLESTON, FEBRUARY, 1835. 147 
 
 ever period of her life she should die, whether with or without issue the 
 limitation should take effect. This would seem to restrict her interest to 
 a life estate, and be inconsistent with the previous limitation to her 
 issue. The clause would also seem inconsistent with the subsequent limi- 
 tation of the whole estate, to George and Eliza Edwards, in the event of 
 the death of both children without issue. It is my duty to reconcile these 
 inconsistencies if possible, so as to give effect to every part of the will ; I 
 find it difficult to do so, but perhaps it is not utterly impossiijle. The 
 most I can make of it is this : the words " giving to Mary and her issue" 
 are perfectly clear : when, therefore, we find a limitation once in the 
 event of her death, it is natural to imply a death without issue. Looking 
 over the whole will, and observing the terms which the testator has used 
 in the subsequent clause, making a similar limitation, we may be justified 
 in applying to the former disposition the qualification which the testator 
 has annexed to the latter, so as to make it read "in case of the demise of 
 my daughter, prior to her being of age, or having issue." From the 
 words immediately following the provision for a division of the estate, it is 
 probable that the testator contemplated the demise of *his daughter r:). i ©^ 
 before the time of the division : as if he had said " if she shall be L 
 then dead." Then how is this consistent with the subsequent limitation 
 of the whole estate to George and Eliza Edwards ? I think these words 
 must be taken subject to the previous disposition in favor of the children 
 of Lefitt and Bona. In the event of the daughter's death, the negroes to 
 go as directed. All the rest of the daughter's estate would go to the 
 son, for the terms of the will are sufficient to create cross remainders, if 
 he did not take it by law. Of those negroes, the testator had disposed 
 definitively then ; if the son should die also prior to being of age or having 
 issue, the ivhole estate, that is, the whole estate in the hands of the son 
 remaining to be disposed of, to go to George and Eliza Edwards. I 
 cannot think of any other reasonable and consistent meaning to give to 
 the provisions of the will. There would be no difficulty in applying the 
 same construction if the daughter had lived longest. 
 
 Then we come to examine the goodness of the limitation, if the testa- 
 tor's children should die prior to being of age or having issue. With 
 respect to the personal estate I have no doubt of the goodness of the 
 limitation. The words do not import an indefinite fiiilure of issue, less 
 so than the common case, where the words are, " if he should die without 
 leaving issue." And I should have as little doubt respecting the land, 
 if it were not devised in fee. The limitation would be as clearly good 
 as in Gulliver v. Wickett, Pells v. Brown, or Porcher ;;. Bradly. What 
 I do doubt, however, is whether these words used after giving an estate 
 tail, in England, would not be construed a remainder generally expectant 
 on the estate tail. In Brownsword v. Edwards, 2 Ves. sen. 243, the devise 
 was to trustees till John Brownsword should obtain the age of twenty- 
 one years, and if he should live to obtain that age, or have issue, then to 
 him and the heirs of his body ; but if he should die under age and with- 
 out issue, then to certain collateral branches of his family. John 
 Brownsword lived to be of age, but afterwards died without having had 
 issue. It was contended that this limitation was an executory devise, 
 depending, according to the liberal import of the terms, on the event of 
 his dying under age and without issue, and that having come of age, it
 
 *187] 
 
 148 , SOUTH CAROLINA EQUITY REPORTS. [*186 
 
 could never take effect But Lord Hardwicke held it to be a remainder 
 after the estate tail He adds however his belief, that if the devise 
 had been to John and his heirs, the construction could not be made ; and 
 refers to the cases in *which, after a devise in fee, the limitation 
 was on the event of the devisee's dying under age or without issue, 
 in which, to effectuate the intention, ' or ' was construed ' and. ' The 
 cases of Fairfield v. Morgan, 2 Bos. & Pul. N. R. 38, and Eastman v. 
 Baker, 1 Taunt. 174, and others in which such construction has been 
 made, were all cases of devise in fee. 
 
 I had occasion to consider this subject in the case of Bailey v. Sea- 
 brook, decided by me in Charleston, and I have not yet been able to 
 overcome the difficulty which I then experienced in giving effect to such 
 a limitation. I have found no case in which such a limitation has had 
 effect, except as a remainder after an estate tail ; though Mr. Fearne, 
 whose suggestions are always entitled to respect, seems to intimate that 
 there might be such an one. It may seem strange that the clear inten- 
 tion of a testator, which does not violate the policy of the law by its 
 tendency to create a perpetuity, should, for technical reasons, fail of 
 effect. Yet, how can 1 disregard the rule, so emphatically said in the 
 cases to have always prevailed without any exception to the contrary, 
 that " where a contingency is limited to depend on an estate of freehold, 
 which is capable of supporting a remainder, it shall never be construed to 
 be an executory devise, but a contingent remainder only, and not other- 
 wise." I will not say, however, though technical difficulties interpose 
 here also, that it may not be possible to give effect to such a limitation as 
 a remainder after a life estate, which in fact it seems to be. Supposing, 
 however, that this must be construed a general remainder after a fee 
 conditional, I have, in the same case of Bailey v. Seabrook, givenjmy rea- 
 sons on the preponderance of authority for the opinion that a remainder 
 cannot be limited after a fee simple conditional, and must be regarded as 
 void. 
 
 But in the present case, I am of opinion that the testator's children 
 took a fee simple absolute, not by the will, but by descent — and conse- 
 quently that the limitation to George and Eliza Edwards may have effect 
 as an executory devise of an estate, to arise on a future contingency. 
 The testator's children were his heirs at law. In the case of Adams v. 
 Chaplin, 1 Hill's Ch. 265, decided by me at Coosawhatchie, I had occasion 
 to consider the effect of a devise to an heir at law, with a void limitation or 
 no limitation, of the possibility of reverter. That case I believe is still before 
 the Court of Appeals ; at all events I am not aware of any decision upon 
 it, and shall therefore throw out such additional ideas, as occur to me 
 *1881 on *the subject. I have re-examined that opinion, with all the 
 -■ attention in my power, and have found nothing to alter it; I think 
 that in case of such a devise, the fee conditional must be held to merge in 
 the right of reverter ; or, to speak more accurately, that the heir takes by 
 descent and not by devise. The case of Dunn v. Greene, 3 Pr. Wms. 
 10, is in point. A copyholder in tail accepted from the lord, a grant of 
 the fee simple. The Chancellor said, that unless it were expressly found 
 that the custom of the manor allowed of entails, this was a fee simple 
 conditional, and plainly merged in the fee. I think this coincides with 
 the rule which Mr. Hargrave, in his note Co. Lit. 12, lays down as the
 
 *188] CHARLESTON", FEBRUARY, 1835. 1-19 
 
 result of the cases to which he refers, " that whenever a devise gives to 
 the heir, the same estate in quality as he would take by descent, he shall 
 take by the latter." Now the authorities are clear, that the fee ^^iuiple 
 conditional is of the same quality as the fee simple absolute, thuuu;h it 
 may differ in quantity. Coke, on commenting on Littleton's text, "And 
 note that a man cannot have a more large or greater estate of inheritance 
 than fee simple," observes : "this doth extend as well to fee simple con- 
 ditional, and qualified, as to fee simple pure and absolute; for our author 
 speaketh here of the ainpleness and greatness of the estate, and not of the 
 perdurableness of the same. And he that hath a fee simple conditional 
 and qualified, hath as ample and great an estate, as he that hath a fee 
 sim]ile absolute ; so as the diversity appeareth between the quantity and 
 quality of the estate." 
 
 In Clerk i*. Smith, 2 Salk. 241, the testator devised to his heir at law, 
 and his heir on condition, that he should pay £200 to such person as his 
 mother should appoint, and it was held that he took by descent. I have 
 not the means of referring to some of the authorities there quoted, but in 
 Comyn's Dig. Tit. Devise, R. it is said, referring to Lat. 798, that the 
 heir takes by descent, " though it be devised to the heir, subject to a 
 charge, for that does not make an alteration of the estate," "or subject 
 to a contingency upon which another shall have it, for it descends in the 
 meantime." 
 
 There is quoted from Cro. Car. IGl, that he takes by devise, if the 
 estate be given to an heir, " upon condition to pay debts, and for non- 
 payment to another." But in Clerk v. Smith, it is said, Treby, C. J., and 
 Powell, J., denied this case to be law, and in Comyn is quoted "Court 
 per Holt, for the heir takes by descent, and upon failure of payment, the 
 other shall have it byway of executory *devise." In Bacon's r;icioc) 
 Abridgment Tit. Descent E. it is said, "if a man devises land to L 
 his eldest son and his heirs, paying £20 a-piece to his younger children 
 at their ages of twelve, and upon non-payment of the legacies, devises the 
 land to his younger children and their heirs, the eldest son is in by 
 descent;" referring to Moore, 644, Cro. Eliz 833, 919, 920. In ail 
 these instances, as in the case of the devise of the fee simple conditional, 
 the fee is given with a possibility annexed, an estate defeasible on a con- 
 tingency. This accords with the general rule of law, and can never 
 defeat any valid disposition by way of executory devise, for it is of the 
 definition of an executory devise, that by it an estate may be limited to 
 arise in future, leaving the land in the meantime to descend to the heir. 
 
 The case of Goodright v. Sealle, 3 Will. 29, does not disagree with 
 this. In that case, testator devised to his heir at law, providing that if 
 he should die without issue living at his death, the estate should go to his 
 mother. It was perfectly immaterial whether the heir took by descent or 
 not. On the authorities, I have referred to, I have no doubt but that he 
 was in by descent, and there is nothing in the case to contradict this. 
 But this did not affect the validity of the executory devise to the mother. 
 The person who took at his death without issue, took not as ao heir of 
 the testator, but as a purchaser under the will. But suppose the testator 
 had devised to the heir upon condition of his having issue, without any 
 limitation over in the event of a breach of the condition. The case of 
 Whalev v. Cox, 2 Eq. Ca. Ab. — was one in which the testator gave to 
 'Yol. I.— 33
 
 *190] 
 
 150 SOUTH CAROLINA EQUITY REPORTS. [*1&9 
 
 his heir on condition he should pay £500. It was clear he was in by- 
 descent, and the condition void, as none but the heir could take advan- 
 tage of the condition. Or suppose the executory devise to have been 
 void on account of the remoteness of the contingencies on which it was 
 limited ; is it not plain that the estate of the heir would have been an ab- 
 solute indefeasible fee simple ? Is there any doubt about the rule that 
 the heir will take even against the intention, what is not effectually dis- 
 posed of. Whatever estate is given to the heirs whether for life, or 
 howsoever otherwise qualiBed, or whatever condition, contingency, or 
 possibility is annexed to it, yet if there be no eifectual disposition, is it 
 not manifest the heir must take absolutely and take by descent ? Then 
 if it be true that a remainder limited after a fee conditional is void, does 
 it not follow that the heir after a devise to *him of that estate, 
 must take absolutely by descent ? The passage in Bracton, " Item 
 poterit pluribus fieri donatio per modum simul et succim," &c., does 
 seem to show, that in his opinion a remainder might be limited after 
 an estate in fee simple conditional. Yet if that be the true construction, 
 I think the authority is overruled by the whole current of more modern 
 decisions. 
 
 I think error has arisen from some notion of an intention of the testa- 
 tor in favor of his blood, a more distant rather than intermediate heirs — 
 which intention is to be favored ? This is unknown to the law, which 
 regards every heir successively, as representing the ancestor, clothed with 
 the same rights, and standing in the same relation. It is for this reason 
 that even in the case of an estate tail which is said to be privileged from 
 merger by construction from the statute, where the tenant in tail has the 
 immediate right of reversion or remainder, he may bar it by fine with- 
 out recovery. Harg. n. to Co. Lit 121. • Though the person claiming 
 at the termination of the estate tail takes as the heir of the donor or first 
 purchaser, yet he so takes through the intermediate heir, as to be estopped 
 by his act. Mr. Hargrave says, "none can derive title to the estate, 
 except as his privies or heirs, in which character his fine is an immediate 
 bar to them." 
 
 The children of George Barksdale taking an absolute fee simple, 
 I think there is a good executory devise to George and Eliza Edwards. 
 
 To the bill of Henry Bona, the lapse of time is relied on as a bar to his 
 demand. The present plaintiff was not the legatee, but his father, of the 
 same name. From the view I have taken, I think his right accrued upon 
 the death of Mary White Barksdale, in 1808, so that more than twenty 
 years have elapsed from that time to the filing of the bill. If Henry 
 Bona, the father, had lived to the present time, it would be a question 
 between him and the executor, whether he was not barred by lapse of 
 time. There may be a question too, whether Thomas Barksdale's pos- 
 session was not adverse from the time of the estate's being surrendered to 
 him, so as to mature his title by the statute of limitations. But the 
 present plaintiffis an infant; though it is said his father was living at the 
 death of Mary White Barksdale, yet it does not appear from anything 
 before me, at what time he died, nor docs it appear at what time Thomas 
 j^,qi-| Barksdale took possession of the estate.* I must direct an 
 -^ inquiry to ascertain these points, and reserve this part of the case 
 for the coming in of the report.
 
 *191J 
 
 CHARLESTON", FEBRUARY, 1835. 151 
 
 The plaintiff, Bona, is not the proper person to sustain the bill. Tiie 
 legal representative of his father, executor or administrator, should bo a 
 I)arty to it. Leave may be given however to amend the bill, making the 
 proper party : and it is ordered accordingly. 
 
 It is ordered and decreed that the defendant, Martha Sarah Barksdale, 
 administratrix of Thomas Henry Barksdale, account before the Commis- 
 sioner for the personal estate of her intestate, except such slaves as the 
 testator, George Barksdale, derived from his marriage with the mother 
 of his daughter, Mary White Barksdale, and of his sou, Thomas Henry 
 Barksdale, respectively ; and that upon such accounts being had, she pay 
 and deliver over to the plaintiffs, George Edwards, Daniel Holbrook, and 
 Mary, his wife, the whole of the estate which her said intestate derived 
 from the will of his father, George Barksdale, as aforesaid, and that she 
 also deliver to the said plaintiffs, all the muniments and evidences of the 
 title of the real estate of her said intestate derived in like manner. The 
 costs of the first bill stated to be paid out of the said estate. 
 
 The defendants appealed from this decree. The cases were elaborately 
 argued by Dunkin, Bailey and Hunt, for the appellants : and Petigru 
 and King, for the appellees. 
 
 The following authorities were cited and commented on by the counsel 
 for the appellants : Adams v. Chaplin, 1 Hill's Ch. 265 ; Scanlan v. 
 Porter, 1 Bail. 427; Bedon v. Bedon, 2 Bail. 231; 1 Hill's Ch. 39; 2 
 Cruise Dig. 461: 6 lb. 183; Tit. 38, chap. 9, sec. 18-24; 1 Taunt, 174; 
 3 Roper on Leg.' 291, 371 ; 6 Yes. 341 ; 7 lb. 454 ; Co. Lit. 20, a. 20, 
 b. Prest. on Est. 263; 10 John. Rep. 19. 
 
 And the following on the part of the appellees : 3 Eq. Rep. 251 ; 2 
 Saund. 280 ; 2 Yes. sen'r. 243 ; 2 New Rep. 38 ; 2 Yern. 388 ; Cro. 
 Eliz. 525 ; 3 Cruise, 461 ; 1 Russ. and Milne, 553 ; 2 Strange, 1251 ; 4 
 Yes. 160; 1 Bro. Ch. Rep. 393; Ray. 252; Cowp. 31, 797; 2 P. W. 
 69; 3 Yes. 536; 3 Bro. Ch. Rep. 465; 6 T. R. 30; 3 Yes. 450; 18 
 John. Rep. 368; 1 Hall, 184; 2 Mass. R. 554; 6 John. Rep. 54; 2 
 Bin. 252 ; Cro. Jac. 185. 
 
 O'Neall, J. In these cases, as in Bedon v. Bedon, the question which 
 decides the whole matter is, what estate did Thomas *Henry rt.\(\9 
 Barksdale take under the will of his father, George Barksdale, '- 
 deceased. This, in its development and decision, will require us to give 
 consideration to the will. 1st. As to the bequest in favor of Henry 
 Bona, and the executory devise to George and Eliza Edwards. 2d. If 
 the last should fail, then as to the estate of Thomas Henry Barksdale in 
 the land of the testator under his will, whether it be a fee conditional, or 
 a fee-simple. 
 
 1. A general rule of construction is, that the whole will should be con- 
 strued together, so that we may arrive at the entire intention of the tes- 
 tator, not at unconnected parts of it This rule applies where there are 
 many clauses, unless indeed it should be the case that the same article of 
 property is given by different clauses to different i)ersons ; in that case 
 the last clause is regarded as the last disposition, revoking all which had 
 gone before it. This will, however, it seems to me, is but one devise or 
 bequest, contained in a single clause, and must, therefore, be more imme- 
 diately under the operation of the general rule which I have stated, than
 
 152 SOUTH CAROLINA EQUITY REPORTS. [*192 
 
 it would have been if it had consisted of many clauses. In all parts and 
 ali its ])rovisions, it has reference to the period of division which it fixes. 
 The testator directs the whole estate to be kept together, and improved 
 for the l)enefit of his daughter and son, until either should come of age, 
 or until the marriage of his daughter before maturity, then he directs the 
 whole estate to be shared and divided between them This provided for 
 his children during minority, and also for both, when they or the daughter 
 only had entered upon the cares and responsibilities of a life unrestrained 
 by a parent's, guardian's, or an executor's care. As would be natural, 
 after making such a provision, the thought seems to have arisen in his 
 mind — " one or both of my children may die without childi'en before the 
 time which I have fixed for the division ; in either case, what is to be 
 done ?" The will proceeds to answer the question, by providing, 1st. If 
 the daughter should die before marriage or maturity, then, that the 
 negroes received by the testator in marriage with her mother, should 
 revert to the children of Peter Samuel Lefitt, of Savannah : 2d. If his 
 son should die before the same event, without children, then, that the 
 ^,Qq-, negroes received by the testator* in marriage with the mother of 
 -^ his son, should revert to Henry Bona : 3d. If both should die, 
 the daughter, before marriage or before attaining to full age, and the son 
 under age and without issue, then that the Avhole remaining estate should 
 be given to George Edwards and Eliza Edwards. 
 
 I have thus stated together the construction of the testator's will, 
 according to my reading of it, and it seems to me so perfectly obvious, 
 that it would be almost unnecessary to urge an argument in support of it. 
 But the cases are of so much expectation to the parties, and may be of 
 some importance to the profession in confirming previous decisions, that 
 I will, as well as I am able, and as briefly as I can, state the legal reasons 
 for the construction. On looking to the will, it will be seen that the 
 testator, after directing the division, adds, "which they and their issue, 
 legally begotten, are to enjoy forever ; but in the case of the demise of 
 my daughter, my will is that all such negroes as I am possessed of through 
 her mother, do revert to the children of Peter Samuel Lefitt " The 
 words preceding this contingent bequest, show that the testator, in look- 
 ing to the death of his daughter, contemplated the possibility that that 
 event might take place without issue, and if so, and it took place before 
 her marriage, then, that the negroes of her mother should go over. For 
 it is obvious on reading this part of the will, in connection with that 
 which preceded it, directing the division, that it was a mere division for 
 what might occur before it took place. If this was not so, the limitation 
 over to the Lefitts would be on a general failure of issue, and would be 
 void on account of its remoteness. The construction which I have 
 resorted to in this respect is admissible, inasmuch as it sustains and does 
 not defeat the bequest. If, however, the Ijequest could even take 
 effect at the death of the daughter happening after marriage, and thus 
 escape the objection for remoteness, then the result might be that the 
 Lefitts would not find a single one of the negroes bequeathed to them in 
 remainder in her possession. For, in the division the executors might 
 have delivered these negroes to her brother; (the will imposes no restraint 
 in this respect.) The Lefitts might, if the construction thus suggested 
 was right, recover them from him, and he, under his father's will, not be
 
 *193] CnARLESTON, FEBRUARY, 1835. 153 
 
 entitled to licr share of her father's estate. For the will only would ^ive 
 to him or her a cross-remainder in the event of her death before marriar"-e 
 or full age, or his death under* age and without issue. This r^^f,, 
 absurd consequence shows that such a construction cannot be L ^•^•* 
 given to the bequest over to the Lefitts, and that this, as well as the other 
 reasons already suggested, made their rights dei)endent on her death 
 before marriage or full age. The same reasons apply to the bequest lo 
 Henry Bona, and make his rights dependent on the contingency of the 
 death of the son, Thomas Henry, under age and without issue. For the 
 testator intended the contingent bequests to the Lefitts and Bona to 
 stand upon the same footing. 
 
 I have said that the cross-remainder in favor of the son depended on 
 the death of his sister before marriage or full age, and that in favor of the 
 daughter, on the death of the son under age or without issue. This is, I 
 think, the true reading of the will. For, notwithstanding, in the latter 
 ]iart the testator speaks of both dying " under age or without issue," yet, 
 I apprehend these words relate to the death of either before the period 
 of division ; and if so, my construction is the only one which can be 
 given. For the division is to take place at the marriage of the daughter, 
 or on either attaining to full age. That the words used in the latter part 
 are intended to qualify and regulate the previous bequests at the time 
 fixed for division, is obvious enough 'from the connection in wliich they 
 are used. The testator says that they are additional to what had gone 
 before, not that they are in place of the previous words. Read them as 
 additional, and state the previous part of the will, with these additional 
 words, thus — "The whole estate to be kept together for the benefit of my 
 son and daughter, until either of them come of age, or the marriage of 
 my daughter, then that it be divided between them ; but if both die with- 
 out issue, then that the estate be given to George and Eliza Edwards, 
 except the negroes received in marriage with the mother of my daughter 
 and son." When so stated, it is only necessary to read it, that it may be 
 understood. The obvious propriety of this construction is thus made 
 manifest, from placing the words to be construed in the juxtaposition 
 which I have done. 
 
 If this view of the cross-remainders is correct, it defeats at once the 
 devise over to George and Eliza Edwards. For it is then dependent on 
 a contingency which has never happened — the death of the sun under age, 
 and ivithoLit issue. But in relation to the executory devise in their favor, 
 it is subject to some other views, which put an end to all possil)le claims 
 on their part in this behalf. The *will provides — "In case of the r*i 05 
 death of my daughter Mary and my son Thomas, prior to their •- 
 being of age, or having issue, that the whole of my estate be given to 
 George and Eliza Edwards." Upon these words I remark that the 
 words "be given,^^ naturally imply that some person was to have the 
 legal power to fulfil their meaning, by delivering over the estate to 
 George and Eliza Edwards. If their estate was to be future and expect- 
 ant, depending on a general failure of issue, it would have been too remote, 
 and never could have had effect; if it depended on a failure of issue at 
 the death of the first taker, then no one would have had the power of 
 delivery contemplated by the will. For the executors' duty was dis- 
 charged, and their power ended when they put the property into tbd
 
 154 SOUTH CAROLINA EQUITY REPORTS. [*195 
 
 possession of Thomas Henry Barksdale. But if the estate of George 
 and Eliza Edwards depended upon the death of the daughter before 
 marriage or maturity, and of the son under age without issue, then, as 
 the estate would still be in the care of the executors, these words "be 
 given," to George and Eliza Edwards, could be given effect to by a 
 delivery. Straws, we are told sometimes show us the course which the 
 wind blows, so here, these words, unimportant as they appear to be, 
 plainly point to an act to be done by his executors, in fulfilment of his 
 intentions in favor of the devisees in remainder, and that their rights 
 were to attach, or be defeated at the time fixed by the will for the division 
 of the testator's estate. 
 
 In the construction of this part of the will, I have taken it as true that 
 "or" must be construed '-'and." I now proceed to assign the reasons 
 why it is so. If I have been right in the construction that this provision 
 points to the period of a division for its application, then there can be no 
 doubt whatever that the word "or" was used by the testator in the sense 
 and meaning of "and." For any other meaning would give effect to a 
 dying without issue beyond that time, and might carry over the estate at 
 the death of the devisee, no matter when it might take place. 
 
 But the case of Scanlan v. Porter, 1 Bail. 427, it seems to me, decides 
 the very point. The words there, were — " Should any of my children 
 die hefore they are of age, or have laivful issue. ^' Tire words here are 
 — "In case of the deaths of my daughter Mary and my son Thomas, 
 prior to being of age or having issue." The provisions are almost in 
 the same words ; in substance they are indentical ; and I am unable to 
 *iofiT ^®® ^"y J"^^ ground upon which a distinction* may be drawn be- 
 -l tween the two cases. The reasons given for the judgment of the 
 Court in Scanlan v. Porter, might be used and applied with equal force 
 and propriety to this case. In construing such words in a will, the 
 ol)vious and clear intention of the testator would, I freely admit, over- 
 reach and defeat any artificial rule of construction. But when that is not 
 the case, it is wiser and safer to adhere to a rule of construction than to 
 resort to a conjectural exposition of the meaning. 
 
 If the devise to the son or daughter had been a fee conditional, I do 
 not perceive that that would have altered the construction ; for, in such 
 a case, the testator would be regarded as intending to qualify the pre- 
 vious fee conditional by creating an executory devise over, to take effect 
 on the contingency of the death of the tenants in fee conditional underage 
 without issue ; but if they live to that event, that then they should have 
 the conditional fee with all its common law incidents. Perhaps the more 
 correct remark upon such a disposition would be, that until twenty-one, 
 or the death of the devisees before that age, leaving issue, the estate of 
 both son and daughter would be a mere executory devise, which would, 
 at twenty-one, or before twenty-one, if the devisees should die before that 
 age, leaving issue, become a vested common law estate in fee conditional. 
 These views dispose of the executory devise over to George and Eliza 
 Edwards, and show that it cannot take effect, for the best of all possible 
 reasons, that the contingency has never happened, Thomas Henry Barks- 
 dale having lived beyond twenty-one. 
 
 2. Ti)is makes it necessary to inquire whether Thomas Henry Barks- 
 dale took the real estate in fee conditional, or absolutely. The part of
 
 *196] CHARLESTON, FEBRUARY, 1835. 155 
 
 the will upon which this depends, is in the followinj^ words : " Respect- 
 ing the lands and negroes now in my possession, I desire thiit the wiiole 
 may be kept together and improved to the utmost of tlie abilities of my 
 executors, for the mutual benefit of my daughter, Mary White i3arksdale, 
 and my son, Thomas Henry Barksdale, (requesting that they may have 
 the best education that possibly can be had in South Carolina,) then on 
 either arriving of age, or on the marriage of my daughter, prior to such 
 period, I direct that the said estate, with all its accumulation, may be 
 equally shared and divided between them, which they and their issue, 
 legally begotten, are to enjoy for ever." Notwithstanding I have said 
 that this question depends upon the construction of the part *of r:}:in'T 
 the will quoted, yet I do not mean to say that it is alone to be ^ 
 looked to in giving construction to it ; indeed, it is manifest that otlier 
 parts of the will must have a great effect upon this. As is said in Be- 
 don V. Bedon, 2 Bail. 24S, the device under consideration could not be 
 considered a fee conditional ; " for that estate supposes a possibility of 
 reverter." In the case before us, the testator has shown that he never 
 intended the estate to return, for the want of persons to take per formam 
 doni; for he has, at least in one event, death before marriage or maturity 
 without issue, provided how the estate should go by his will, and not by 
 operation of law. Whitworth v. Stockey, 1 Richd. E. Repts. If the 
 supposed estate of fee conditional, is, however, regarded as vesting and 
 commencing on marriage or attaining to maturity, then it may be fairly 
 argued that the testator did not intend to create such an estate, from the 
 fact that the persons who would, on the extinction of his lineal descend- 
 ants, be his heirs and next of kin, George and Eliza Edwards, and be 
 entitled to the reverter, where by the will only to take upon the death of 
 the daughter and son before marriage or full age, without issue. Under 
 the will, and according to our unanimous construction, the son and 
 daughter have cross remainders in the portion of the estate to which each 
 would have been entitled. This, it seems to me, is at war with the notion 
 of each having a conditional fee, for it is admitted on all hands, that there 
 can be no such thing as a remainder after an estate in fee conditional ; 
 but if this obligation could be avoided by rejecting the remainder and 
 relying on the fee conditional alone, then the son and daughter, each, had 
 a conditional fee in one half the real estate. Upon the death of the 
 daughter, her half reverted, and as her brother was the only heir-at-law 
 then surviving of the testator, he would come in under the reverter, and 
 take her half of the estate absolutely. Such a result shows, as I conceive, 
 the folly of attempting to make a conditional fee out of words which the 
 testator never intended should have any such effect ; but I liold there can 
 be no such thing as a fee conditional where there is a good executory 
 devise over. When the limitation is xoithin a life or lives in being and 
 twenty one years after, it cuts down and destroys the effect of even a 
 previous devise to one and the heirs of his body, by shoxcing that the 
 testator did not look to an indefinite succession, and that he did not 
 intend his devisee to have all the incidents of the common law estate of 
 fee conditional, such as the p>ower to alien or encumber the estate; for, 
 in *such a devise, it is clear that his alienation, even after the birth r*jgg 
 of issue, would not bar the remainder man, if at the deatli of the
 
 156 SOUTH CAROLINA EQUITY REPORTS. [*198 
 
 devisee he had no issue then living If the devise be to A. and the heirs 
 of his body, and there are no words to restrain their indefinite irai)ort, 
 then an executory devise over, after a fiiihire of such heirs of the body, 
 vvonkl be void for remoteness. In the first case which I have put, if it is 
 not a conditional fee in the first taker during his lifetime, it cannot be so 
 in his issue, for they must take through him and by descent. The words 
 " heirs of the body," in such a case, must be regarded as merely marking 
 the testator's intention, that if the de'^isee died without issue living at his 
 death, that the estate should go over, otherwise it should not, and in this 
 point of vievv the estate might be regarded as a fee simple defeasible. I 
 am aivare that this puts the doctrine in a point of viexo not altogether 
 usual ; it is, however, the only means of reconciling two rules oflaiv: 
 1st. That a limitation over, after a fee conditional, is void; 2d. That 
 a limitation over ivhich is to take effect within a life or lives in being 
 is good. 
 
 The words of the devise, however, which are supposed to make it a fee 
 conditional, cannot, in my judgment, have that effect. The words "their 
 issue legally begotten,^' are not necessary words upon which such an 
 estate would arise at common laic. According to it, as it stood before 
 the statute de donis, the words " heirs of the body" seem to be the only 
 words on which a conditional fee was allowed. Indeed, in the earlier 
 days of judicial exposition of the common law, the word "issue" was held 
 to be a word of purchase. Under the statute de donis, the word " issue" 
 has, I admit, been held to be sufficient to imply an estate tail, and for a 
 most obvious and just reason. Such an implication is in exact accord- 
 ance with the intention of that statute, as expounded by the English 
 Judges, when they divided the estate under it — 1st, into a life estate in 
 the first taker ; 2d, the estate to the issue per formani doni, and 3d, the 
 reversion. But this cannot aid the plaintiffs' (George, and the heirs of 
 Eliza Edwards) argument here, for their estate must be judged of by the 
 law, without the statue de donis. To constitute a fee conditional, the 
 words must import inheritance and procreation ; for the descendants of 
 the tenant in fee conditional, take as heirs and heirs of the body. The 
 term " issue" may include these as persons, but not as inheritors. To give 
 *1991 them that effect, we must imply, that the testator intended that *they 
 -' should come in by descent. I have denied, in Bedon v. Bedon, 
 2 Bail. 231, and Adams v. Chaplin, 1 Hill's Ch. 265, that a fee condi- 
 tional can arise by implication, and I am perfectly satisfied of the correct- 
 ness of the position, and prepared to carry it out and give it effect in all 
 cases. 
 
 But I am persuaded, that in another point of view, the words before 
 us cannot have the effect contended for by the plaintiffs, George, and the 
 heirs of Eliza Edwards. They are not parts of the gift — it was com- 
 plete without them. The words previously used, directing a division of 
 the estate between the son and daughter, were enough (I should tliink) 
 at common law to give them the fee ; but, when they are construed under 
 our act, there can be no question that the daughter's and son's respective 
 estates, when the daughter married or attained to twenty-one, and the 
 son was of full age, were fees simple absolute. — Bedon v. Bedon, 2 Bail. 
 2ol; Adams v. Chaplin, 1 Hill's Ch. Rep. 265. As Thomas Henry
 
 *199] CHARLESTON, FEBRUARY, 1835. 157 
 
 Barksdale attained that age, and was entitled on the previous words to 
 that estate, were the subsequent words intended to change the legal 
 character of it ? I think not. They are more descriptive of the enjoy- 
 ment of the estate which the testator thought would result to his son and 
 daughter and their issue forever, from the division of it between them 
 nnder the provisions of this will : as is said by my brother Johnson, in 
 Manigault v. Deas, they are used " as marking the quantity of the estate" 
 which the devisees took. They were the mere expression of hope on the 
 part of an anxious parent, that the estate would descend from generation 
 to generation in his blood forever. But they were not used as restrictive 
 of the previous estate ; if any idea of their legal effect entered into the 
 mind of the testator, it was that they would show that the estate was in 
 his children forever. 
 
 These views show satisfactorily, at least to my mind, that the plaintiffs 
 (George Edwards and the heirs of his sister, Eliza Edwards) cannot take 
 under the executory devise over ; nor as the heirs of the testator. So 
 much of their bill as sets up these claims, ought to be dismissed ; it 
 ought however to be retained, so far as they claim as next of kin of the 
 deceased, Thos Henry Barksdale. So, too, so much of the bill of Henry 
 Bona as claims, under the will of George Barksdale, the negroes which 
 belonged to the mother of Thomas Henry Barksdale, ought to be dis- 
 missed; but so much as claims as next of kin of Thomas Henry Barks- 
 dale, *ought to be retained. The question of who are his next of r>i:9AQ 
 kin, has not been tried ; the cases must go back for the purpose of ^ "^ 
 trying it, and of making partition between the widow and next of kin. 
 
 It is ordered and decreed, that the Circuit decree be reversed, and the 
 causes remanded to the Circuit Court for the purpose of ascertaining the 
 next of kin of Thos. Henry Barksdale, (deceased,) and making partition 
 of his estate between them and the defendant, Mrs. M. S. Barksdale, his 
 widow. The costs of both cases to be paid out of the estate. 
 
 Johnson, J., concurred. 
 
 John Boykin and Wife, v. Lewis Ciples and Wife, and F. A. 
 
 Delesseline. 
 
 A feme covert may sustain a suit for her separate estate, her husband being joined 
 in the bill; in such case she will not be estopped by his deed, made in his indi- 
 vidual capacity. [*203] 
 
 Where no trustee has been appointed, the husband will be regarded as trustee of 
 his wife's separate estate; but on bill filed by husband and wife for such estate, 
 the Court will appoint another trustee. [*203] 
 
 Charleston. — May, 1834. 
 
 This case arises under the will of John Adarason, of Camden, dated 
 21st January, 1814. The testator left two daughters— Sarah, who inter- 
 married with the defendant, Lewis Ciples, and Amelia, now deceased, 
 who intermarried with the defendant, F. A. Delesseline ; a grand- 
 daughter, the plaintiff, Charlotte A. Boykin, formerly Adamson, who
 
 158 ^ SOUTH CAROLINA EQUITY REPORTS. [*200 
 
 intermarried with the phiiutiif, John Boykin; and three grand-sons, 
 John, Alexander and William Adamson. By two clauses in said will he 
 bequeathed, viz : " To each of my daughters, Sarah Ciples, wife of Lewis 
 Ciples, and Amelia Adamson, and to luy grand-daughter, Charlotte 
 Adamson Boykin, wife of John Boykin, during their natural lives, alone 
 to their sole and separate use and benefit, without being in any manner 
 subject to the debts, contracts or forfeitures of their husbands, and to the 
 heirs of their respective bodies, who may be living at the time of their 
 respective deaths, I give and bequeath fifty shares in the Union Bank, 
 ami fifty shares in the Planters' and Mechanics' Bank of this State, 
 making in the whole three hundred shares. In case either of my 
 daughters or grand-daughter should die without leaving such heirs of her 
 body, her sliare shall go to the other or others of them, subject to the 
 *9nn same *terms and limitations as her or their other bank shares. In 
 " -I case they should all die without leaving such heirs, the said bank 
 share shall go to my grand-sons above named, subject to the same terms 
 as the bank shares bequeathed to thoni. To my daughter Amelia, 
 during her natural life, alone and to her sole and separate use, without 
 being in any manner suliject to the debts, contracts or forfeitures of her 
 husband, and after her death to the heirs of her body who may be living 
 at the time of her death, I give and bequeath the following negro slaves 
 with their increase from this day, that is to say — Molly, Aty, Fanny, Pat 
 and her six children, John, his wife and her two children, old Xance and 
 her six children, Bob, Dublin, London, and his wife and her child, making 
 in all twenty-six slaves, subject to the same limitations over on her death 
 without leaving such heirs, as are expressed respecting the bank stock 
 hereinbefore bequeathed to her." 
 
 After the date of the will, Amelia intermarried with Francis A, Deles- 
 seline. The testator died in May, 1816, and in January, 1817, the three 
 husbands. Ciples, Boykin and Delesseline, with the consent and knowledge 
 of their wives, executed mutual releases in the following manner : — 
 
 South Carolina. 
 
 AVhereas John Adamson, by his last will and testament, made the 
 following bequests to Sarah Ciples, wife of Lewis Ciples, Amelia Adam- 
 son, who has since married Francis A. Delesseline, and Charlotte A. 
 Boykin, wife of John Boykin, with such limitations over as in the said 
 will are expressed : that is to say, to the said Sarah Ciples, thirty-two 
 slaves, in the said will named to Amelia Delesseline, twenty-six slaves, 
 and to Charlotte A. Boykin, twenty-six, in the said will named, and all 
 the increase of the said slaves from the time of making the said will. 
 And whereas it has been agreed by and between the said Lewis Ciples, 
 F. A. Delesseline and John Boykin, to relinquish and secure to each other 
 all the contingent interest which may enure to their respective wives and 
 the heirs of their respective bodies, by such wives on the death of any of 
 them, the said Sarah, Amelia, or Charlotte, without heirsof their respective 
 bodies. Now know all men by these presents, that in consideration of the 
 premises, and in consideration that the said Lewis Ciples has made to me 
 *onoi ^ deed of the same import of these presents, and a further *consid- 
 
 "-• eration of one dollar to me, the said John Boykin, in hand paid by 
 the said Lewis Ciples, the receipt whereof is hereby acknowledged, have
 
 *202] CHARLESTON, FEBRUARY, 1835. 159 
 
 granted, bargained, sold and delivered, and by these presents do grant, 
 bargain, sell and deliver to the said Lewis Ciples, all the said thiriy-two 
 negroes and their increase, so bequeathed to the said Sarah Ciples, to 
 have and to hold the said negro slaves and their increase to the said 
 Lewis Ciples, his executors, administrators and assigns, for ever. And I 
 do hereby bind myself, my heirs, executors and administrators, to warrant 
 and for ever to defend the said negro slaves and their increase, to the 
 said Lewis Ciples, his executors, administrators and assigns, against 
 myself, my wife, and the heirs of the body of my wife, by me begotten, or 
 any other person by, through or under me or them, claiming or to claim 
 the same or any part of the said slaves or their increase, but not against 
 the claims of any other person, or of any heirs of the body of the said 
 Charlotte by any other husband begotten. 
 
 (Signed) Jno. BoYiaN. 
 
 Mrs. Delesseline died in July, 1832, without having had issue; and 
 Mr. and Mrs. Boykin, in May, 1833, filed this bill against Ciples and 
 wife, and Delesseline, to recover under the terms of the said will, their 
 alleged proportion of the negroes bequeathed to Mrs. Delesseline. 
 
 The defendants contended that the plaintiffs were not entitled to 
 recover — that Mrs. Boykin could not maintain the suit, and that Mr. 
 Boykin'was estopped by his deed of January, ISIT. 
 
 Johnston, Chancellor. The objection made to the manner in which 
 Mrs. Boykin sues, if valid, comes too late. The slaves are expressly 
 exempted from the contracts of the husbands. Of course the husbands' 
 deeds are invalid, as respects the wives. I shall not, however, interfere 
 with the legal liabilities of these three husbands and executors, to make 
 good the warranties of the three interchangeable deeds, whereby they 
 assumed rights they did not possess, nor had any reason to suppose they 
 possessed, and that for the purpose of frustrating the provisions of a will, 
 of which two of them were executors appointed by the testator, and 
 which the other was bound by his marriage to execute. Let each take 
 his remedy against the other at law, if he chooses. But the deeds are 
 *declared inoperative, as regards the wives. It is further decreed t^qqq 
 that Mrs. Boykin is entitled to a ])artition with Mrs. Ciples, of the ^ 
 slaves left at Mrs. Delesseline's death — the share of each to be subject to 
 the limitations of Mrs Adamson's will. Let a writ issue for the parti- 
 tion. If either wishes security for the forthcoming of the property to 
 answer the limitations over, an application, when made, will be heard. 
 Let Lewis Ciples, Mr. Boykin and Mr. Delesseline, each, pay his own costs. 
 
 From this decree the defendants appealed on the grounds : — 
 
 1. That Mrs. Boykin cannot, in her own name, maintain a suit for 
 the recovery of these negroes. 
 
 2. That Mr. Boykin is estopped by this deed. 
 
 8. That when the separate estate of the wife has been conveyed or 
 released by the husband, the husband and wife cannot maintain a suit 
 for its recovery. 
 
 King, for the appellants, 
 
 Petigru, contra. 
 
 Harper, J, The only question necessary to be considered is, whether
 
 160 SOUTH CAROLINA EQUITY REPORTS. [*203 
 
 a married woman may sustain a suit for her separate property, her 
 husband being joined in the bill. If she may, she certainly cannot be 
 estopped by her husband's deed, made in his individual capacity. 
 
 When property is settled to the separate use of a married woman, and 
 no trustee is appointed, it is the known rule of the Court that the hus- 
 band shall be made a trustee. Being such trustee, it should seem that 
 he was a necessary party to a suit for the trust property, and being liable 
 for costs, that any other prochem amy was unnecessary. It is true that 
 it was said by Lord Hardwicke, Fawlet v. Delaval, 2 Ves. sen. 663, if a 
 bill be brought by husband and wife for the wife's property, it is the 
 husband's bill ; but in that case, for aught that appears, the suit was for 
 the benefit of the husband. 
 
 He explains in GrifiBth w. Hood, lb. 453, that "where there is any 
 thing for the separate use of the wife, a bill ought to be brought by her 
 pochein amy for her, otherwise it is her husband's bill. However, there 
 have been cases of such a bill by the husband and wife, and the Court 
 has taken care of the wife, and ordered payment to some person for 
 her." 
 
 *-?nil *This is, I suppose, what we are bound to do, if the bill be 
 ■^ -^ sustained. A husbaud, from necessity, is construed the trustee of 
 the wife, but he is not the proper trustee. In general, the office of a 
 trustee is to protect the property against the husband. 
 
 The Chancellor's decree is therefore affirmed, and it is ordered that it 
 be referred to the Commissioner to report to the Court of Chancery at 
 its next sitting, a proper person to be appointed the trustee of the plain- 
 tiff, Mrs. Boykin, and that upon such trustees being appointed, the 
 property allotted to Mrs. Boykin under the writ of partition, be delivered 
 to him to be held to the uses of John Adamson's will. 
 
 Johnson, J., and O'Neall, J., concurred. 
 
 James Thompson, and Jane, his wife, and Michael Murray, an infant, 
 by his next friend, the said James Thompson, v. Stevens Perry, 
 James Murray, and Elizabeth, his wife, Robert W. Seymour, and 
 Richard Connoly. 
 
 Contribution among volunteers under separate conveyances, refused. [210] 
 
 What acts will estop a party from setting up a resulting trust. [*210] 
 
 Under what circumstances, a feme covert may dispose of property by way of 
 
 appointment. [*21]] 
 Wife not dowable of an estate held by the husband as trustee. [*213] 
 Contribution to remove a general lien ou the whole property will not be allowed 
 
 among volunteers, unless there was an inevitable necessity that part of the property 
 
 should pay it: the necessity caunot exact where the donor is still solvent, for it 
 
 seems then the creditor might in equity, be forced to exhaust the donor's estate 
 
 before proceeding against the property conveyed. ["213] 
 Where real estate was conveyed in trust for a feme covert, and to such person as 
 
 she, by will or deed should appoint, her appointment by will is valid without the 
 
 concurrence of her husband. [*214] 
 
 The bill which was filed the 27th March, 1832, states, that on the 1st 
 March, 1823, John M, Murray, the former husband of the plaintiff, Jane
 
 *204] cnARLESTON, MARCH, 1835. 161 
 
 • 
 
 Thompson, and father of the plaintift", Michael Murray, purchased a lot 
 in Charleston at the corner of King Street and South iJay, for $2,500. 
 That on the loth of the same month, the said John M Murray by 
 indenture of release for the nominal consideration of $1000, conveyed the 
 lot to defendant, Stevens Perry, in trust for Catharine Coiinoly, the wife 
 of Richard Connoly ; and in the release, a power devising the lot not- 
 withstanding coverture, was attempted to be given. That Catharine 
 Connoly, who was the mother of the jdaintifF, Jane, and of the defendant, 
 Elizabeth Murray, afterwards in reference to the supposed power, execu- 
 ted an instrument in the nature of a will, by which she devised the said 
 lot to her daughter Elizabeth, (who has since intermarried with James 
 Murray,) on condition that in seven years she pay to the plaintiif, 
 Michael, one thousand dollars, and that defendant, Elizabeth, has, since 
 the death of her mother, remained in possession thereof. That Richard 
 Connoly, the husband of Catharine, *having never, either before r^j^.^r^c 
 or after his marriage, given any ]iower or authority to his said L -• 
 wife to dispose of property by will, or to acquire property to her sepa- 
 rate use, her will is absolutely void, and the lot is subject to partition as 
 the estate of the said Catharine : or the trusts of the release having 
 terminated by the death of the said Catharine, the uses of the conveyance 
 result to the grantor and his heirs, and the lot is now part of his estate ; 
 and by his will, he devised his whole estate to the plaintiff, Jane, for life, 
 with remainder to his son Michael. The bill avers that the plaintiff, 
 Jane, was at the time the release of her husband was executed under age, 
 and being ignorant of the ol)ject of the parties, and supposing that some 
 equitable family arrangement was intended, renounced her right of dower 
 to the lot, which renunciation, under the circumstances, it is insisted is 
 not binding : that the said lot has been conveyed by defendant, Elizabeth, 
 to Robert W. Seymour and Richard Connoly as trustees, by way of settle- 
 ment on the said Elizabeth and her husband. The bill further states, 
 that on the 25th September, 1826, Richard Connoly executed two deeds 
 of gifts, one to John M. Murray, the plaintiff's then husband, in trust for 
 his daughter Jane, of two negro slaves ; the other to Elizabeth Connoly, 
 of three negroes : that one of the negroes so given to the plaintiif, Jane, 
 has been levied on and sold to satisfy an execution against Connoly, and 
 being insufficient, the other negro is threatened to be sold for the same 
 purpose. The plaintiffs insist that Murray and wife stand in the same 
 relation to the debtor as they do, and are bound to contribute equally 
 witb them to the payment of this execution. 
 
 The prayer is, that Murray and wife may be decreed to contribute to 
 the payment of Connoly 's debts, for wdiich the negroes so given are 
 liable : that partition of the lot be ordered, if, in the opinion of the Court, 
 it is subject to partition as the estate of Catharine Connoly ; or, if the 
 Court should be of opinion that the lot is in Equity, the i)roi)erty of the 
 estate of John M. Murray, that the defendants may be decreed to convey 
 it according to the limitations of his will, and that in either case defend- 
 ants account for the rents and profits. 
 
 The answer of Stevens Perry admits the purchase of the lot by John 
 M. Murray — the release to himself as trustee for Mrs. Connoly, with 
 power to devise, and the execution of the will in pursuance thereof He
 
 162 SOUTH CAROLINA EQUITY REPORTS. [*205 
 
 • 
 *9fiRl ^^^^ "°^ know that Richard Connoly gave his *wife any authority 
 -I to dispose of property by will or otherwise, but submits that such 
 authority, or his consent may be implied from his knowledge of the 
 release, and requesting this defendant to act as trustee. He admits the 
 execution of M. Murray's will, but requires proof of the plaintiffs' 
 (Jane's) nonage, when she renounced her dower, and submits that such 
 renunciation is at all events effectual. 
 
 The answer of James Murray, and Elizabeth his wife, avers that 
 Catharine Connoly paid John M. Murray, $2'?50 for the lot conveyed to 
 her by the release, she having funds separate from her husband : that 
 ElizalDeth held under the will of her mother until shortly before her 
 marriage, when she conveyed the lot and the negroes given to her by 
 deed of gift from her father to Mr. Seymour, in trust for the uses of the 
 marriage settlement. They insist that Mrs. Connoly had full power to 
 devise the lot by way of appointment — deny any right to contribution, 
 and rely on the marriage settlement as a purchase for valuable con- 
 sideration without notice of any equity or lien. 
 
 The answer of Richard Connoly — avers that the purchase of the lot by 
 John M. Murray was made with his (Connoly's) funds, advanced by his 
 wife to Murray without his knowledge, and with a view, as he believes, 
 to secure the property to their family : that his wife executed her will 
 without any authority from him, and without his knowledge or consent ; 
 and although he was a party to the mari'iage settlement between James 
 Murray and his daughter, he did not thereby intend to waive any of his 
 rights ; and as the property was purchased with his funds, he ])rays that 
 it may be decreed to be conveyed to him. That his wife loaned $1000 of 
 his funds to John M. Murray without his knowledge, and he never knew 
 of it until after his wife's death. He prays that in any decree which may 
 be made, as the plaintiffs are the lawful representatives of John M. 
 Murray, they may be decreed to account to him for this money. He 
 denies that at the time the release was executed, the plaintiff, Jane, was 
 under age ; on the contrary, he believes she was then twenty-one. 
 
 Robert W. Seymour — answers that he is ignorant of the matters 
 charged in the Ijill : as trustee to the marriage settlement between James 
 Murray and his wife, he prays that in any decree which may be made, 
 the interests of those concerned in the settlement, may be duly regarded 
 and protected. 
 
 -j-.^^Yi *The cause came on for trial before Chancellor Johnston, at 
 " 'J Charleston, January, 1833. 
 
 The plaintiffs gave in evidence the conveyance for the lot from John 
 M. Murray to Stevens Perry, (expressed to be in consideration of $1000) 
 in trust for Catharine Connoly, and " to the use of such person or per- 
 sons, for such estate or estates, and for such interest, and in such parts 
 and proportions, and chargeable in such manner, either absolutely or con- 
 ditionally, as the said Catharine at any time, by deed or instrument in 
 writing, or by last will and testament to be sealed and delivered by her in 
 the presence of two or more witnesses, shall direct, limit and appoint." 
 On which is the renunciation of dower in common form by the plaintiff, 
 Jane, then Murray's wife. 
 
 The will of Mrs. Connoly, dated 16th August, 1828, was produced, 
 by which, in reference to the power contained in the deed, she devises
 
 '207] 
 
 CHARLESTON, MARCH, 1835. 163 
 
 the lot to her daughter Elizabeth, on condition that within seven years 
 she pay to the plaintiff, Michtel Murray, one thousand dollars. As also 
 the will of John M. Murray, dated ISth April, 1829, in which he directs 
 that his personal estate be sold to pay his debts, and if insufficient, that 
 his real estate, to wit : " my three story brick house on South Bay, as 
 also my two story wooden house, now occupied by me as a dwelling 
 house, &c.," be sold; " and after the payment of debts, I give to my 
 wife, Jane, my real and personal estate which may remain, during her 
 natural life, and after her decease to my son Michiel, &c. " 
 
 Also, two bills of sale from Richard Connoly, to his daughters, Jane 
 and Elizabeth, as stated in the bill, dated 23d Sept., 182(5, with clauses 
 of warranty " against all persons," the first purporting to be in consid- 
 eration of $150, and the last of $100. 
 
 Certain judgments against Richard Connoly were given in evidence, 
 on account of which it was proved, one of the negroes in the bill of sale 
 to Jane was sold, leaving still unsatisfied balances. 
 
 The defendants gave in evidence, the deed of marriage settlement, 
 dated .31st Dec, 1829, between James Murray of the first part, Eliza- 
 beth Connoly of the second, and Robert W. Seymour and Richard Con- 
 noly of the third ; whereby, in consideration of a marriage intended 
 between the two first, the said Elizabeth conveyed to the two last the 
 said lot and negroes mentioned in the deed and bill of sale, in trust for 
 the use and benefit of the said Elizabeth and James during her life, and 
 to such person as she by will should appoint. 
 
 *It was proved that John Murray came to Charleston a poor r.-i<c)Qo 
 young man, about 1820, and worked as a tradesman at low wages L 
 until May, 1821, when he married the plaintiff", Jane, and commenced 
 merchandizing. 
 
 William Carter, of the firm of Bee & Carter, sworn. Was a broker 
 in 1823. Was employed by Mrs. Beach and Mrs. Gilchrist to sell two 
 lots, one at the corner of South Bay and King streets ; the other adjoin- 
 ing it on King street. Sold them Jan. 10, 1823, separately. At the 
 sale, they were set down to John M. Murray, each at the sum of $2,500. 
 Before the sale, John M. Murray and Richard Connoly came to witness, 
 together, and gave him to understand that Connoly was to buy the corner 
 lot, and Murray the other. When titles came to be made, witness, re- 
 collecting this, remarked to them, upon finding that titles were to be 
 made to Murray for both lots, that he was surprised at it. They replied, 
 the matter was understood between them. John M. Murray always 
 gave witness to understand, that the money paid for the corner lot was 
 paid by Mrs. ConnolJ^ Although the titles were made to Murray, yet 
 there were two bonds and two title deeds, one for each lot. The 
 bonds were for the same amount, drawn by the same obligors, and paya- 
 ble at the same time ; but secured by separate mortgages, one for each 
 lot. Mrs. Beach and Mrs. Gilchrist put both bonds into witness' hands. 
 Murray paid part of the money to them before witness received them, and 
 took loose receipts in general terms. After witness received them, he 
 made partial payments, and took the same kind of receipts. Witness 
 therefore had a right to enforce either mortgage for the balance left. 
 But conceiving that the lot he considered Connoly's had l)een paid otf by
 
 16-1 SOUTH CAROLINA EQUITY REPORTS. [*208 
 
 Mrs. Connoly, through Miirra}', he put Murray's bond in suit, and en- 
 forced the mortgage on his lot — that is, the lot on King street. 
 
 Mrs. Murray sworn — objected to. Connoly and wife lived at the 
 corner of King street and South Bay. Had two children, Mrs. Thomp- 
 son and witness. There were leased houses on the lot when sold l)y Bee 
 & Carter. The houses belonged to different persons from those who 
 owned the lots. 
 
 Witness knows that her mother paid $2750 for the corner lot. Murray 
 charged $250 for tlie difference in the value of the lots. Witness lived 
 in the house, and knew of each payment when made Her mother paid 
 to John M. Murray, who came for the money to carry it to Carter. 
 5(,g^(v-, *Has heard Murray and her mother often in conversation about 
 -^ it : they always said the payments were made by her. He had 
 not the means He had not even the means to pay for his own lot 
 when he bought it — had been keeping store and boarders but a short time. 
 
 Heard Murray often say he had not the means to begiu with, but that 
 her mother gave him $1000 for that purpose. 
 
 Her father and mother were in possession, before the purchase, of the 
 corner house, and continued to live together there till 1826, when he 
 went to his plantation, leaving her mother, &c., there. He was back- 
 wards and forwards after that time. There was a misunderstanding 
 between her father and mother, which sprung up about that time. 
 
 Has never, to this hour, heard any one whatever say that her mother 
 did not pay for the house. 
 
 Murray, in 1826, borrowed from her mother $1000, to aid him in 
 buying a lot on South Bay. He promised to give a note for the loan — 
 promised in witness' presence. The note was to be payable at two years. 
 The loan was to be free of interest, for two years, and then to bear inte- 
 rest at five per cent. He bought the lot, which he owned at his death ; 
 but he never gave the note. Her mother repeatedly asked for it : his 
 reply always was, that he would go and write the note, and bring it : but 
 he never did so. Her father knew nothing of this loan. John M. 
 Murray died in 1829, after witness' mother. 
 
 Just before her mother's death, she deposited a large sum in specie, in 
 the United States Bank. Can't tell the amount. 
 
 Cross-examined. Sometimes her mother delivered the money in pay- 
 ment of the corner lot to Murray's wife, who delivered it to her husband. 
 She took no receipts. The money passed confidentially. Her mother 
 was to have the bonds delivered to her when the last payment was 
 made. 
 
 Presumes the money was saved by her from a store kept by her and 
 her father, in which they did a pretty good business. No money came 
 to her mother but from the store. The store was kept in her father's 
 name. 
 
 The $2750, the $1000, and the other $1000 loaned, all came from the 
 store. Her father knew of the profits of the store, but left it to his wife 
 to take care of them. 
 
 5,,cj, ^-1 The testimony going to show a resulting trust, given by Carter,* 
 -' and Mrs. Murray, and the testimony as to the loan of the $1000 
 given by the latter, was objected to, on the ground that it was incompe- 
 tent to prove the trust by parol ; and on the further ground that the
 
 *210] CHARLESTON, MARCH, 1835. 165 
 
 resulting trust and loan could only be set up by cross-bill. The evidence 
 was received subject to the objections, in order to avoid a new trial. 
 
 Johnston, Chancellor. The first question among those discussed is, 
 whether the plaintiffs, Thompson and wife, are entitled to contribution 
 for the slave sold, and to have James Murray and wife decreed liable with 
 respect to the slave threatened with sale. It is unnecessary to go into this 
 matter at all, since this being a case of separate conveyances, unless there 
 is something to make Richard Connoly liable to the plaintiffs, no one 
 holding under him can be made responsible. If the bills of sale, in con- 
 tradiction to their terms, be held mere gifts without warranty, then 
 Richard Connoly, and of course other volunteers under him, holding by 
 separate conveyances, are not responsible to these plaintiffs. If the bills 
 of sale set forth the real terms of the transfer, then these plaintiffs have 
 ample remedy if Richard Connoly be solvent ; and there is no allegation 
 in the bill of his insolvency. Besides, it is not alleged that the debts of 
 Connoly existed, or bound the slaves when conveyed by him. 
 
 The next point concerns the lot at the corner of King street and South 
 Bay. 
 
 The evidence satisfies me that the funds with which the lot was pur- 
 chased never belonged to John M. Murray, and that the title was never 
 intended to vest in him. He was, therefore, really a trustee, and merely 
 executed a trust when he conveyed to Perry. The conveyance carried 
 the fee out of him ; and his wife's dower was well renounced also, her 
 allegation of infancy not being proved. 
 
 As, in reality, John M. Murray was a mere trustee, even if there had 
 been a defective execution of the power of appointment by Mrs. Con- 
 noly, his legatees could not complain. The property might as well rest 
 where it is, or in Perry's hands, as to be brought back, where it would be 
 liable to a trust. 
 
 If any body could object, it would be Richard Connoly, with whose 
 funds the lot was purchased, and to whom a trust resulted. 
 
 But he cannot object. It appears from what he told Carter, that he 
 consented to the investment, and to the titles going in the name r*2ll 
 *of Murray : and his becoming a party to the marriage settle- ^ 
 ment between his daughter, Elizabeth and James Murray, closes his 
 mouth, on the score of a resulting trust. 
 
 The only doubt that could exist in the matter was, whether the execu- 
 tion of the power of appointment by Mrs. Connoly was sufficient. 
 
 First, whether an interest was conveyed by Murray sufficient to extend 
 to the estate which she appointed I feel satisfied the objection is ground- 
 less, upon a due construction of the words of the deed. I am also satis- 
 fied, that the purpose for which the conveyance was made, would of itself 
 extend the interest parted from by Murray as far as was necessary to 
 cover the appointment provided for in the same instrument. (1 Mod. 104 ) 
 
 If Mrs Connoly's appointment was invalid, it was not because the 
 estate appointed was not out of Murray to the fall extent of her appoint- 
 ment ; nor because it was not rendered subject to her appointment to the 
 extent to which she did appoint ; but it must be because she was not 
 competent to execute the power. 
 
 The objection is, that she was not competent either to receive or to 
 execute the power without her husband's permission. If necessary, I 
 Vol. L— 34
 
 166 SOUTH CAROLINA EQUITY REPORTS. [*211 
 
 should hold that she was : the power was a naked power of appointment, 
 not coupled with a trust. In such case the husband was not responsible, 
 as he would have been for the malexecution of a trust; and therefore that 
 control, which would be necessary to his protection in the latter case, is 
 not given him in the former. 
 
 But I am satisfied from the evidence that her husband consented to the 
 arrangement, of which this was a part, before the titles passed to Murray., 
 Carter's evidence shows this. Again, his joining in the deed of settle- 
 ment on James Murray's marriage, is evidence of his assent to the 
 appointment. 3 Atk. 196. 
 
 John M. Murray's will is dated several months after Mrs. Connoly's was 
 admitted to probate, and recorded ; and by that will he acquiesces in 
 everything done. He does not pretend to claim the lot. He specially 
 describes all the real estate he has, using the words, " my 7^eal estate, to 
 wit: — my three story brick house on South Bay, ' and ' my dwelling house 
 and grocery at the lower end of King street." There is no residuary 
 clause in the will. Here then he describes two lots as his whole real 
 estate, one of which joins the one in question, but never intimates a claim 
 to it. 
 
 ^n-in-\ *-A.s respects Thompson and wife, the bill must be dismissed. 
 -^ As respects Michael Murray, the time for his claiming the $1000 
 has not rolled round ; and, therefore, it must be dismissed as regards 
 him also. 
 
 The $1000 claimed by Richard Connoly cannot be recovered without 
 a cross-bill, if with one. It looks like a legal demand. It is decreed 
 that the bill be dismissed. 
 
 The plaintiffs appeal from this decree on the grounds : — 
 
 1. That the deed which empowered Mrs. Connoly to make a will, 
 being a post-nuptial deed, is invalid to confer such power on a married 
 woman ; and that therefore the will itself is void and of no effect, being 
 executed during her coverture, and that too without the knowledge of her 
 husband. 
 
 2. That the claim of plaintiffs for contribution towards the'amount of 
 Connoly's debt, with which the negroes were chargeable, (both the sisters 
 having the slaves as gifts from the father,) ought to have been allowed 
 by the Chancellor, the same being a clearly equitable and just claim as 
 among volunteers. 
 
 3. That Mrs. Thompson is, at all events, entitled to dower of the pre- 
 mises in dispute, she being in her minority when she renounced it. 
 
 4. That the decree is in other respects contrary to the laws of the 
 land, and unsupported by the weight of testimony in the cause. 
 
 Bailey, for the appellants. On the first ground, cited Co. Lit. 12, a 
 Harg. n. 6 ; Co. Lit. 3, a. ; 2 Roper, H. & W. 108 ; 2 Rep. 51. As to 
 the plea of a purchase for valuable consideration without notice, the in- 
 strument under which defendants' claim gave notice, 2 Fowb. 151-66, § 3 ; 
 Grimke v. Grimke, 1 Eq. Rep. 366 ; Stat. Eq. Rep. 292 ; 2 Bail. 332. 
 
 Dunkin, contra. As to the power of a feme covert to dispose of pro- 
 perty by way of appointment, cited 4 Kent's Com. 319 ; 3 John Ch. 
 549, Bradish v. Gibbes ; Hearle v. Greenbank, 3 Atk. 696 ; Sugden,
 
 *212] CHARLESTON, MARCU, 1835. 1G7 
 
 330 ; 2 Yes. 191. Connoly may be estopped by being a party to the 
 marriage settlement ; if not, a trust results to him. 
 
 Lance, in reply, cited 1 Cruise, 483 ; 2 Vern. 6t ; 1 Black 447; 4 
 Com. Dig. Estates by Grant, 8 ; 7 Bacon Ab. 300, Tit. will ; 2 Roper, 
 90, 100. As to contribution, 1 Mad. 233. 
 
 *0'iSrEALL, J. Upon the plaintiffs' thirdground of appeal, it is only r^^oio 
 necessary to remark, that the Chancellor says that there was no proof ^ ~ 
 of the infancy of the plaintiff, Mrs. Thompson, then Mrs. Murray, at the 
 time she renounced her dower. This is a very sufficient answer to the 
 ground. But without saying that even infancy would avoid her renunci- 
 ation of dower, there is another view which would prevent her from being 
 endowed of the premises. According to the proof, her husband (Mur- 
 ray) purchased the premises as a trustee for Mrs. Connolly, and paid for 
 them with money furnished by her. His seizen was therefore entirely in 
 trust, and of such an estate, it was held in the case of Plant v. Payne, 2 
 Bail. Rep. 319, the wife could not be endowed. 
 
 As to the plaintiffs' second ground, there can be as little difficulty ; 
 for let it be conceded that generally, as among volunteers, there ought to 
 be contributions to remove a general lien attached upon the whole prop- 
 erty conveyed ; yet this case cannot have the benefit of such a rule. For 
 a contribution can never be asked for on account of the removal of a 
 common burden on property conveyed, unless there was an inevitable 
 necessity that a part of the property conveyed should pay it. Screven 
 V. Joyuer, executor, and others, 1 Hill's Ch. Rep. 261. This inevit- 
 able necessity or compulsion to pay might exist among volunteers, 
 where the donor had given to them his whole estate, and was thereby 
 rendered insolvent, or had given to them a part of his estate, and had 
 subsequently become insolvent. But such necessity or compulsion cannot 
 exist when the donor is still solvent, and a creditor seizes and sells the 
 property given, or the donee pays the donor's debts. For in such a case 
 the creditor either has no right to sell the property at law, or in all events 
 in equity, and would be forced, on a proper application to exhaust the 
 donor's estate before he would be allowed to go against property which 
 his debtor had given away. In this case it is not pretended that the 
 donor is insolvent ; and it hence follows that there cannot have been that 
 inevitable necessity or compulsion to pay out of the property conveyed 
 to the plaintiff, Mrs. Thompson, which is necessary to entitle her to contri- 
 bution from the other donee. This view of the case is upon the supposition 
 that the plaintiff, Mrs. Thompson, and her sister, Mrs. Murray, the de- 
 fendant, had been shown to be donees in possession at the time the sheriff 
 sold the slave conveyed to Mrs. Thompson, and decides the case upon 
 the most favorable footing on which the plaintiffs could put it. 
 
 *The first ground of appeal makes the question, whether the r*2i4 
 deed from John M. Murray to Stevens Perry, the trustee, could L 
 empower Mrs Connelly (a feme covert) to make a will ? I am satisfied, 
 both that the power could be conferred on a married woman, and also 
 that it was well executed by her will, and that the express consent of the 
 husband is wholly immaterial to the validity of cither. For notwith- 
 standing in general legal contemplation, the existence of the wife is 
 merged in that of the husband during coverture, yet this rule is not of such
 
 168 SOUTH CAROLINA EQUITY REPORTS. [*214 
 
 universal application as to render every act of the wife void. It seems 
 she may even pui'chase and hold real estate without the express consent 
 of her husband— that her acquisition cannot be defeated by any one but 
 him, so long as he may live. For in Coke, upon Littleton 3, a. 122-3, 
 it is said, " a/eme covert cannot take any thing of the gift of her husband, 
 but is of capacity to purchase of others without the consent of her husband, 
 and of this opinion was Littleton in our books and in this book, section 
 677 ; but her husband may disagree thereto and divest the whole estate ; 
 but, if he neither agree nor disagree, the purchase is good ; but after his 
 death, albeit her husband agreed thereto, yet she may, without cause to be 
 alleged, waive the same, and so may her heirs also, if after the decease of 
 her husband she herself agreed not thereunto." In this case neither the 
 husband nor the heirs of the wife ask to set aside the conveyance to the 
 wife : the plaintiffs regard the conveyance as good, but the power to ap- 
 point as void. But, if the wife could purchase, she might on any condi- 
 tions, and under any limitations, and it is the privilege of the husband 
 during coverture, of herself or her heirs after his death, to affirm or dis- 
 affirm the whole contract ; a part cannot be taken and a part rejected — 
 all or none must stand. 
 
 If, however, the wife was incompetent to execute the power conferred 
 on her by the deed, then her will would be void, and the land must either 
 revert to the grantor, Murray, or be distributed as her estate. It seems 
 to be well settled, "that every person capable of disposing of an estate 
 actually vested in himself, may exercise a power or direct a conveyance of 
 the land. The rule goes further, and even allows an infant to execute 
 a power simply collateral and that only ; and a feme covert may execute 
 any kind of power, whether simply collateral, appendant or in gross, and 
 it is immaterial whether it was given to her while sole or married. 
 The conciirreyice of the husband is in no case necessary." (4 Kent 
 Cora. 318, 319.) This is the language of one of the greatest chancery 
 ^^, .-] lawyers of the present *day, Chancellor Kent; aud it cannot be 
 -' necessary to do more than refer to his clear statement of princi- 
 ples, by which this part of this case must be put at rest. It may be well 
 however to look to the manner in which an appointment operates, to show 
 that no objection can in fact exist to an execution of it by a, feme covert. 
 The appointee is merely designated by the person making the appointment ; 
 his estates and rights are derived from the deed creating the power. As 
 is said in Bradish v. Gibbs, 3 J. C. R. 550, the principle is well esta- 
 blished that when a person takes by execution of a power, he takes under 
 the authority of that power. The meaning is, as Lord Hardwicke ex- 
 presses it, that the person takes in the same manner as if the power and 
 instrument executing the power had been incorporated in one instrument, 
 and as if all that was in the instrument executing had been expressed in 
 that giving the power. This being the case, and the appointee taking 
 nothing from the wife, but all from the person creating the power, there 
 can be no reason to avoid her act on account of coverture, the disability 
 of which is intended both for the protection of the husband and also for 
 herself. 
 
 It is ordered and decreed that Chancellor Johnston's decree be 
 affirmed. 
 
 Johnson, J., and Harper, J., concurred.
 
 1 
 
 *215] CHARLESTON, MARCH, 1835. 169 
 
 Ex parte Job Palmer, Surviving Executor of Samuel Miller, 
 
 deceased. 
 
 Tenant for life mfiy be paid for improvements when he finishes buildings left 
 unfinished. [*217] 
 
 An executor will be allowed comp^sation for improvements made by him on real 
 estate, when they are such as the Court would have authorized; and whether they 
 ate such depends on the fact whether they are beneficial to all concerned. [*217] 
 
 O'Neall, J. In the case of Samuel W. Miller, legatee of S. Miller 
 V. The Executor and Executrix of Samuel Miller and others, the decretal 
 order was made out of which this application arises. In that case it was 
 adjudged in the constructiou of the will of the petitioner's testator, that 
 the estate for life by it devised to the widow, then the wife of the petitioner, 
 did not commence until Job P. Miller, a son of the testator, attained to 
 the age of twenty-one years. Before that event, in 1799, as appears by 
 the same decree, the petitioner built the house ou the unimproved lot 
 devised* to the widow of the testator for her life. The petitioner r^,^^(> 
 was the executor of the testator's will, and at the time he erected '- 
 the house, was the husband of the widow, und therefore tenant per auter 
 vie in expectancy. There seems to be no doubt that he acted with an 
 intention to benefit tlie estate ; and at the same time not to prejudice 
 himself by building without a chance of reimbursement. He was advised 
 by the Ordinary of Charleston District in 1198, to erect the building, 
 "as it will greatly conduce to the benefit of the estate," and if, upon the 
 death of the tenant for life, "the executor should not be fully reimbursed 
 for the expenses of the said building, the Court of Equity will compel the 
 children to bear their proportion of the buildings so descending." I have 
 thus stated such additional facts as did not appear in the decree upon the 
 petition, and which may be material. It seems to me that there is no 
 well founded objection to the proceeding by petition. The point now 
 made was reserved in the former decree, and leave given to the petitioner 
 to make application as he has done. The proceedings which may be had 
 on the petition will be in the case of Miller v. The Executor of Miller, 
 deceased. That some of the party to that suit is dead, is no objection, 
 if their representatives be made parties to this petition, as appears to 
 be done. 
 
 After divesting the case of these preliminary objections, it will be 
 necessary to examine the right of the petitioner to be reimbursed for the 
 house and other buuildings erected by him on the vacant lot, which, by 
 his testator's will, after Job P. Miller became fully of age, was devised to 
 the testator's widow, late the wife of the petitioner. 
 
 I agree with the Chancellor, that the former decree does not conclude 
 the respondents from objecting to any allowance being made to the 
 petitioner on that account : it is true that it would seem that the Chan- 
 cellor thought, when he drew the former decretal order, that the peti- 
 tioner was entitled to compensation ; but still there was no adjudication 
 that he was so entitled. It was a mere reservation of the question until 
 the life estate fell in, " and then all parties (says the decree) are to be at 
 liberty to apply by petition to this Court to adjust the mode of settlement 
 or compensation between Mr. Palmer, as owner of the house, and the 
 owners of the lot." There is nothing in this direction which can operate
 
 170 SOUTH CAROLINA EQUITY REPORTS. [*216 
 
 to estop the parties from now making the question, whether the petitioner 
 is entitled to be paid for his improvements ? For, at the most, it cannot 
 have any effect beyond a mere interlocutory order; it does *not 
 "" -' end the controversy between the parties, and hence is not a final 
 decree, which conld alone estop the parties from the cpiestion. It seems 
 however to me that the opinion of the Chancellor, which he seems to 
 have entertained in his former decree, was right, and that his present 
 conclusion has resulted from not having the facts of the case so fully 
 before him as they were when he pronounced his original decree. I 
 agree that generally a tenant for life is not to be paid for improvements ; 
 but to that rule there may be exceptions, as is manifestly the case where 
 a tenant for life goes on and finishes buildings left by the testator in an 
 unfinished state. Hibbert v. Cook, 1 Sim. & St. 552. The reasons of 
 that exception may be useful to us here. They certainly are two-fold, 
 first, that it is beneficial to the remainder ; and second, the implied inten- 
 tion of the testator from the state of the property, its unfinished con- 
 dition, that it should be finished out of his estate in order to render it 
 useful to both the tenant for life and the remainder-men. In the case 
 before us both of these reasons apply directly : it is alleged that the im- 
 provement was a beneficial one to all concerned ; and it is manifest that 
 the lot was most probably useless to the tenant for life unless it was im- 
 proved. We should, therefore, perhaps, (were it necessary to do so,) 
 be authorized to presume that the testator's intention was that the lot 
 should be improved, as well for the use of the tenant for life as of the 
 remainder-men. 
 
 But it is not necessary to resort to the doctrine between tenants for 
 life and in remainder, in order to decide the question. For the house and 
 other improvements were made in 1199, six years before the petitioner's 
 wife's life estate commenced ; he built as executor and under the advice 
 of the ordinary. In Inwood v. Twyne, 2 Ed. 152, Lord Chancellor 
 Northington stated the rule which always governs this Court in passing 
 upon the acts of trustees. He said, "I can conceive many cases where a 
 conversion of such estate (personal into real) might be made by truste'es 
 or guardians, and that this Court would support and approve their con- 
 duct ; and it would be strange to say that trustees would be censured in 
 this Court for doing what the Court would have ordered to have been 
 done." 
 
 Under this rule the question is, were the improvements such as the 
 Court would have authorized the executor to make ? This would have 
 ^g,Q-^ depended upon the fact whether it would have been *beneficial to 
 " -' all concerned as devisees. On looking back to Mr. Miller's will, 
 I perceive that he has directed all his estate, real and personal, (after 
 payment of his debts,) to be kept together for the joint use and mainte- 
 nance of his wife and children until liis son. Job, arrived at the age of 
 twenty-one years. This, I think, constituted a strong reason for the im- 
 provement of the lot : while vacant it would be unproductive capital ; 
 when improved its rents or use might contribute to the purposes of the 
 trust, for the widow and children. But the fact that it might have been 
 such an improvement as the Court would have ordered, is a ground to 
 retain the petition, and to submit the question to the examination of the 
 Commissioner. In Myers v. Myers, 2 M'C. C. R. 265, the defendant, an
 
 *218] CHARLESTOX, MARCH, 1835. 171 
 
 executor, was allowed for improvements on the trust estate, on the ground 
 that it was for the benefit of the cedui que trusts. The petitioner it 
 seems to me is entitled to the benefit of the same rule. He made the 
 improvements as executor, and if they were such as were beneficial to the 
 estate, and such as a prudent man, the owner of such an estate as Mr. 
 Miller's, would be willing to. make, then the petitioner is entitled to 
 compensation. 
 
 But he is not entitled to more than the present value of the improve- 
 ments, to be ascertained by the enhanced value which the said improve- 
 ments have given to the lot. If the income from the house and lot from 
 its erection (as the former decree allowed Mr. Palmer to retain the whole 
 without an account,) should on the reference appear to have been more 
 than the interest on the sum of money expended by Mr. Palmer, in 
 making improvements and the costs of necessary repairs, then such excess 
 will be deducted from the present value of the improvements. 
 
 It is ordered and decreed that Chancellor De Saussure's decree, sus- 
 taining the demurrer to this petition, be reversed, and that it be referred 
 to the Commissioner to ascertain and report whether the said improve- 
 ments were beneficial to and proper for the estate ; and if so, then the 
 amount to which the petitioner is entitled on account of the said improve- 
 ments, on the principles and according to the directions contained in this 
 opinion. 
 
 Johnson, J., and Harper, J., concurred. 
 
 J. B. Barnwell, and others, v. John Porteus, and others. [*219 
 
 Under the Act of 1693, (P. L. 3 ) a deed recorded, although not within six months, 
 (as required by the Act of 1785,) acquires preference over a prior unrecorded 
 mortgage. [*220] 
 
 A junior judgment creditor is not, under the Act of 1785, entitled to preference 
 over an unrecorded mortgage. [*221] 
 
 [The Reporter not having been furnished with any other papers in this 
 case, can present no other report than that contained in the following 
 opinion of the Appeal Court.] 
 
 Evans, J. (sitting for Harper, J.) This case was decided by Harper, 
 J., sitting for Chanceller De Sau.ssure, at Coosawhatchie, in January, 
 1833. On examining the decree, there is no ground for questioning its 
 correctness, as to the defendants, John Porteus and Dr. Fuller; but so 
 much of the decree as relates to the rights of the defendant, Arthur G. 
 Rose, it is thought, is erroneous, and it is ray duty to assign the reasons 
 for that opinion. It is very clear, as the presiding Judge says in his de- 
 cree, that the "case was very imj^erfectly presented on the Circuit;" an 
 important feature in the case, and that which probably led to the error in 
 the decree, was not brought to the view of the Judge, viz: that tlie deed 
 from the sheriff to Rose, was recorded in the Register's Office of Beau- 
 fort district. The bill was filed to foreclose a mortgage from John 
 Porteus to E. W. Barnwell. The mortgage was never recorded. Sub-
 
 172 SOUTH CAROLINA EQUITY REPORTS. [*219 
 
 scquently to the date of the mortgage, the sheriff levied on a part of the 
 mortgaged premises, and sold the same under a fieri facias to the de- 
 fendant, A. G. Rose, who being the oldest judgment creditor, did not 
 pay the money, but entered on his execution a credit for the amount of 
 his bid. The deed from the sheriff to Rose was recorded in the Clerk's 
 office of Beaufort district, but not until the expiration of six months. On 
 tliis statement of facts two questions present themselves. 1st. Does the 
 deed of the sheriff to Rose, being recorded, take precedence of the plain- 
 tiff's unrecorded mortgage. 2d. Has Rose's judgment against Porteus 
 a preference to tlie plaintiff's mortgage, under the 45th section of the 
 Act of 1785. 
 
 Rose's deed not having been recorded within six months, can acquire 
 no preference under the Act of 1785, commonly called the County Court 
 Act. But by the Act of 1698, P. L. page 3, "that sale, conveyance or 
 mortgage of lands or tenements which shall be first recorded in the Regis- 
 ter's office in Charleston, shall be taken, deemed, adjudged, allowed of, 
 and held to be the first sale, conveyance or mortgage, and be good, firm, 
 and substantial in all Courts of judicature within South Carolina." At 
 *99ni ^^'® ^^^'^ ^^ ^'^'''^ -^^^' *CIharleston was the principal settlement in 
 -' the State. It was the seat of government, and the only place of 
 judicature. This act speaks only of deeds recorded in Charleston, yet I 
 apprehend when other offices for registering of deeds were established, the 
 provisions of the Act, apply to deeds recorded in such offices, as well as 
 to those recorded in Charleston. By the 45th section of the County Court 
 Act, it is declared that " no conveyance of lands, tenements, or heredita- 
 ments shall pass, alter or change from one person to another, any estate 
 of inheritance in fee simple, or any estate for life, or lives, nor shall any 
 greater or higher estate be made, or take effect, in any person or persons, 
 or any use thereof, by bargain, sale, lease, and release, or other instrument, 
 unless the same shall be made in writing, signed, sealed and recorded in 
 the Clerk's office of the county where the land mentioned to be passed and 
 granted shall be, in manner following, viz. : If the persons who shall make 
 and seal such instrnment in writing, shall be resident within the State ; 
 then the same sliall be recorded withing six months from the signing, 
 sealing and delivery." And if any deed shall not be recorded within the 
 time mentioned in the Act, " such deed or other conveyance shall be legal 
 and valid not only as to the parties themselves and their heirs, but shall be 
 void and incapable of barring the rights of such persons, claiming as 
 creditors, or under subsequent purchases, recorded in the manner pre- 
 scribed by the Act." Now, although by the Acts of the 12th and 17th 
 of March, 1785, the whole State is laid off into counties, yet practically, 
 those acts never went into operation in the districts of Georgetown, 
 Charleston and Beaufort. But by the Act of 1789, P. L. 485, it was de- 
 clared sufficient to record deeds in the Register's office where the land 
 lay, and where the County Courts were not established. It is manifest 
 that neither the plaintiff nor Rose has complied with this Act, and but 
 for the Act of 1698, P. L., p. 3, the unrecorded mortgage would take 
 precedence of Rose's deed ; but as Rose has recorded his deed, he has 
 acquired a preference in pursuance of the Act of 1698. 
 
 On the 2d ground, it is contended that Rose, being a judgment 
 creditor, is entitled to preference over the plaintiff's mortgage, under the
 
 *220] CHARLESTON, MARCH, 1835. 173 
 
 clause of the Act of 1785, above recited. It is exceedinp;ly diflioult to 
 say what creditors are meant by the act, whether all who come under 
 that description, or only such as claim under some instrument of writing, 
 which may be recorded. If this were *now a new question, I r^.^^, 
 should have great difficulty in making up an opinion, but I am L 
 relieved by former adjudications from any difficulty on this point, so far 
 as it relates to this case. In the case of Ash r. Ash, 1 Bay, 305, Chief 
 Justice Rutledge, says, " a mortgage is not void by not being on record. 
 The only risk the mortgagee ran, was the chance of another deed from 
 the seller (Berwick) for the same land, being put on record first :" and 
 accordingly in the case of Ash v. Livingston, 2 Bay, 80, the money 
 arising from the sale, was recovered from the judgment creditor to 
 whom it had been paid, in a suit brought by the executor of the mort- 
 gagee. It is true that the mortgage in this case was anterior to the Act 
 of 1785, and it may be, was not within its provisions ; yet the Court lay 
 no stress on this circumstance, and the principle is laid down broadly, 
 that as to a judgment creditor junior to the mortgage, the latter is good 
 without recording. In the case of Penman v. Hart, 2 Bay, 25, the 
 Court appear to have decided on the grounds that the provisions of the 
 County Court Act did not extend to cases arising in those parts of the 
 State where the County Court system had never gone into practical 
 operation ; yet the case of Ashe v. Ashe is referred to, and its authority 
 not questioned. So far as I have been able to ascertain, the principle of 
 that case has been regarded as the settled law of the land for many 
 years. — I speak from my own experience when I say twenty years at least. 
 Deeds in fee simple rest on the same footing as mortgages in this par- 
 ticular, and if the latter are to be postponed in favor of creditors, so also 
 must the former. If this doctrine were now reversed, there is no conjec- 
 turing the consequences in unsettling the titles of the people of this State 
 to their lands. In Ravenal & Smith v. Smith, 1 M'C. Ch. Rep. 148, 
 Judge Nott, speaking of the case of Ashe v. Ashe, says, "I must confess 
 I never have been perfectly satisfied with that decision, but it has been 
 received and acted on as the law for upwards of thirty years, and ought 
 not to be questioned." Indeed, so well did I suppose the question to be 
 settled, that an unrecorded mortgage or deed, if free from all taint of 
 fraud, was good against one claiming as a creditor merely without prior 
 lien, that I was somewhat startled when I heard the question gravely 
 made and argued. If the principle be wrong, let it be altered for the 
 future by the legislature ; but it is at all times unsafe for a Court^ to 
 reverse a decision, although it may have been wrongly decided origi- 
 nally, which has been acted on so long as to become a rule of property. 
 
 *It is therefore Ordered and decreed, that unless the said John r*222 
 Porteus shall, on or before the 1st Monday in October next, pay 
 up the amount due on his said mortgage, the Commissioner shall, on the 
 said day, or at some subsequent public sale day, sell all the laud described 
 in the mortgage mentioned in the bill, except so much thereof as is in- 
 cliided in the sheriff's deed to A. G. Rose. The sale to be on a credit 
 of six months, with a mortgage and personal security. The costs to be 
 paid out of the proceeds of the sale, and the balance, or so much as will 
 satisfy the mortgage, to be paid to the plaintiffs when collected. 
 
 Johnson, J., and O'Xeall, J., concurred.
 
 174 SOUTH CAROLINA EQUITY REPORTS. [*222 
 
 Thomas IIargroves and Susan, his Wife, formerly Susan Wheeler v 
 Edward Meray and Sarah A. Meray, his Wife, and John T. 
 
 Vausse. 
 
 Equity will entertain jurisdiction of a bill by the administratrix to make property 
 conveyed in a voluntary deed of her intestate, liable to his debts, and to prevent 
 it from being removed from the State. [*2126] 
 
 When in a settlement by the husband for the separate maintenance of his wife, the 
 trustee covenants to save the husband harmless against the wife's debts, this is 
 regarded such a valuable consideration as will protect the property from the hus- 
 band's debts. [*226] 
 
 A deed from a man to a woman with whom he had lived in a state of adultery, held 
 to be voluntary, and the property thereby conveyed, (after exhausting the assets 
 at the death of the grantor,) decreed liable to his debts. [*227] 
 
 Settlement on a wife, when decreed. [*228] 
 
 On the 5th of April, 1821, William Wheeler a married man, gave by 
 deed to Sarah A Evans, a girl who was then with child by him, seven 
 negroes in the following manner, viz : 
 
 " South Carolina, District of Charleston. — Know all men by these 
 presents, that I, William Wheeler, of the above named parish, and in the 
 said district, do hereby give and bequeath, and by these presents do give 
 and bequeath unto Sarah A. Evans, daughter of Mary Evans, widow of 
 John Evans, at present living and residing in the parish above mentioned, 
 all that family of negroes, viz : April, Caesar, Chloe, Betty, Nancy, Patty 
 and Ellen, to hold and keep the said negroes, with the future issue and 
 increase during life, and at the expiration of the life of the within named 
 Sarah A, Evans, all that is herein bequeathed shall go to her heirs for- 
 ever. But in case she has no heirs, and her brother, Elias Evans, be 
 living, at the time of her death, it is my will and desire that he may be 
 fully empowered with authority to act, and by these presents under my 
 hand and seal, he is considered by me, after the death of the within 
 Sarah A. Evans, to be the sole owner of the within mentioned negroes, 
 *2231 ^^^^^ ^^^^ provisions already inserted in the *deed of gift. In 
 witness whereof I have hereunto affixed my hand and seal, this 
 5th day of April, 1827." Signed and sealed in the presence of three 
 witnesses." 
 
 On the 19th March, 1828, the plaintiff, Susan, then Wheeler's wife, 
 having separated from him, filed her bill for alimony, alleging the inter- 
 course between him and Sarah A. Evans, as the cause of separation. On 
 the 20th May following, the bill for alimony was compromised by Whee- 
 ler's conveying, by a deed of separation, to a trustee, for his wife, the 
 property that was her's before marriage. 
 
 The deed was signed by all the parties, and the trustee covenants to 
 save him harmless against his wife's debts. Sarah A. Evans married 
 Moray, but left him and returned to Wheeler, with whom she continued 
 to live. In July, 1829, Wheeler died intestate ; administration was com- 
 mitted to the plaintiff; the widow. Meray seized the negroes contained 
 in the paper of 5th April, 1821, and with the assistance of the other 
 defendant, Vausse, was carrying them off out of the State. The adminis- 
 tratrix filed this bill for an injunction to prevent the negroes from being 
 carried off"; to have an account of Wheeler's debts, and directions for the
 
 *223] CHARLESTON, MARCH, 1S35. 175 
 
 payment of them, and the paper aforesaid, if fraudulently obtained, set aside 
 or reduced, if it should be determined to come within the provisions of the 
 Act of the Assembly respecting gifts, to the injury of wife and children; 
 or the negroes disposed of as assets of Wheeler, if the i)aper should be 
 declared a will — and for general relief. 
 
 The injunction was granted on the 18th September, 1820, and the 
 defendants answered— Edward Meray insisting on his marital rights, 
 Sarah Meray claiming her equity under the instrument, and Yausse 
 claiming the negroes as the agent of Meray, and denying the jurisdictiou 
 of the Court, as well as all fraud. 
 
 In January, 1830, the cause was heard by Chancellor De Saussure 
 upon the bill, answers and evidence. 
 
 His Honor ordered a reference to inquire into the amount of Wheeler's 
 estate and his debts. 
 
 The defendant, Meray, appealed, and in April, 1831, the Court of 
 Appeals sustained the jurisdiction, and extended the order of reference 
 to inquire whether the paper was intended as a deed or will, and to 
 admit parol evidence on the point, reserving the question as to creditors 
 for the coming in of the report. Susan Wheeler, the plaintiff, married 
 with the other plaintiff, Hargroves, and the *suit was continued r^c)C)i 
 by a bill of revivor in their names. She rendered her account as ^ 
 administratrix, and the master reported the claims rendered against the 
 estate. The plaintiff having elected to take her dower, the lands were 
 sold, and all the estate of Wheeler is exhausted ; the only assets to pay 
 his debts are the negroes which he conveyed to defendant, Sarah, and 
 the negroes and cattle which he conveyed to the plaintiff's trustee, as 
 above mentioned. The commissioner also took the evidence of Mary 
 Evans, mother of the defendant. She stated that the defendant was put 
 to live with Wheeler's wife, and was debauched by him when under fifteen 
 years of age ; her child was born before she was sixteen. That the paper 
 of the 5th April, 1821, was handed to witness by Mrs. Wheeler, and 
 Wheeler told her he had done wrong, and made over the negroes ; 
 and Mrs. Wheeler told her the negroes were intended as a compensation, 
 and that she had selected them herself; the child was not then born. 
 That Sarah went from Wheeler's house to a house on his plantation, and 
 took one of the negroes with her. Witness had the paper recorded by 
 the advice of Mr. Cordes. Mrs. Wheeler left her husband, as witness 
 believes, by the advice of her friends, and Sarah went back to his house 
 with her child. She executed a paper, as witness believes, renouncing 
 all right to the negroes daring Wheeler's life. Meray was Wheeler's 
 overseer, and married Sarah with his consent. A week before the mar- 
 riage, Sarah left Wheeler and came to witnesses' house. Meray knew of 
 the paper and promised to make a settlement, but Sarah would not wait 
 for it. She was soon anxious to return to Wheeler and did so, \yhich 
 caused a separation. She was with Wheeler when he died, and refused, 
 after his death, to return to Meray, as she said she was afraid he would 
 treat her child ill. 
 
 Mr. Brougton's letter (which by consent was received in evidence) 
 states the particulars respecting a deed he prepared at the request of 
 Wheeler, and with the assent of Sarah Evans, to correct a mistake in the 
 deed of April, 1827, as the intention was to give the property after his
 
 176 SOUTH CAROLINA EQUITY REPORTS. [*224 
 
 death, which was executed. Neither this paper nor the paper of April, 
 1827, can be found. 
 
 At January, 1834, the cause was heard by Chancellor De Saussure, 
 who made his decree declaring the paper of April, 1821, a will, and the 
 negroes only liable to creditors after the property conveyed to the use of 
 the plaintiff, Susan, by the deed of separation. 
 
 ^.-)„- -] *Froui this decree the plaintiffs appealed, and insist that whether 
 ^ -J the paper of April, 1827, be considered a deed or will, the property 
 thereby disposed of is subject to the claims of Wheeler's creditors, and 
 that between the deed to the plaintiff's trustee and the paper under which 
 defendants claim, the plaintiffs are entitled to a preference, because — 
 
 1. The plaintiff, as an injured and innocent wife, was entitled to ali- 
 mony ; and the covenant of her trustee was an additional consideration, 
 and the settlement was moderate and reasonable, consisting only of the 
 property she brought to Wheeler on her marriage. 
 
 2. Because the provision for Sarah Meray is at best purely voluntary ; 
 and there is no ground for distinguishing her case from that of any other 
 woman freely embracing a life of criminality, and accepting from a mar- 
 ried man the reward of prostitution. 
 
 The defendant, Meray, also appealed, and now moved that the bill be 
 dismissed — 
 
 1. Because the administratrix has shown no equity to entitle her to sue 
 in this Court ; and if it be held that the negroes are part of Wheeler's 
 estate, there is a plain and adequate remedy at law. 
 
 2. Because, if the paper is a deed, even if a life estate was reserved, as 
 intended, to Wheeler, yet, on his death, the estate was absolute in Sarah 
 A. Evans, and the marital rights of the husband attached by his reduc- 
 tion into possession. 
 
 3. Because if the paper is a will, none but an executor or administrator 
 with the will annexed can sue for the property. 
 
 O'Neall, J. The plaintiffs have not insisted on regarding the paper 
 under which the defendants claim as a will ; and, as it appears it may be 
 more beneficial to the defendant, the donee, Sarah, to regard it as a deed, 
 it will be so treated in this opinion. For it is beyond all doubt, that if 
 it is a will, the property conveyed by it would be not only liable to debts, 
 but also that only one-fourth part of the nett value of Wheeler's estate 
 at his death, after payment of his debts, could pass under the said paper 
 regarded as a will to the said Sarah. 
 
 It is first contended by the defendants, Meray and Yausse, that the 
 Court has no jurisdiction of the case : that objection was met, answered 
 and decided by the former opinion of this Court. But it may now be 
 *2261 ^^^' enough to add some other views in relation to *the jurisdic- 
 tion of the Court over the case, in the aspect in which it is now 
 to be regarded. For it seems now to be conceded that the paper in 
 dispute, regarded as a deed, is not liable to any objection on account of 
 its exceeding, at the time of its execution, the proportion of Wheeler's 
 estate, which by law he could convey to a woman with whom he might 
 be said to be then living in a state of adultery. This concession now re- 
 moves the ground of jurisdiction on which the case was then rested. 
 
 It is still, however, (even if it was an open question) maintainable on
 
 *226] CHARLESTON, MARCH, 1835. 177 
 
 other grounds. The bill was filed by the administratrix of Wheeler, to 
 })revent Meray and Vausse from carrying the negoes beyond the jurisdic- 
 tion of the Court. This she had the right to do, in order to test the 
 question whether they were assets liable to the y)ayment of her intestate's 
 debts, and in the meantime to prevent them from being, by the act of 
 the defendants, rendered unavailing. At law she would have no remedy ; 
 for if the deed to Sarah A. Evans (now Meray) was to be regarded, as 
 we think it ought to be, as merely voluntary, she could not as adminis- 
 tratrix, at law have objected to it. 
 
 But there is no doubt tliat the property was liable to the debts, and in 
 equity the administratrix might well be allowed to take the necessary 
 steps to preserve the property for, and keep it within the reach of credi- 
 tors. When to this is added the fact that the creditors might have 
 attempted to make liable the property settled upon her at the time of 
 her separation from her husband, although it might not in fact be lialjle 
 to their claims, yet this vpould be a good ground of coming into equity, 
 to have the property clearly liable to the payment of debts applied in 
 exoneration of the property conveyed to her. 
 
 The question of jurisdiction being thus cleared from all difBcnlties, it 
 remains to be considered and shown (as I have already intimated) that 
 the property conveyed to Sarah A. Evans, is liable for the debts of 
 the donor, William Wheeler, after exhausting the assets, real and per- 
 sonal, of which he died possessed. The conveyance to a trustee for the 
 separate use of Mrs. Wheeler, now Mrs. Hargrove, was not only found 
 on a good, but also a valuable consideration. For the trustee cove- 
 nanted to save the husband harmless against his wife's debts. This, in 
 equity, is regarded as such a valuable consideration, as will protect tlie 
 property thus conveyed from the husband's del)ts Atherley, in his 
 Treatise on *Marriage Settlements, p. 379, speaking of settle- r^gotr 
 ments by way of separate maintenance, says, " with respect to the ^ 
 validity of such settlements, as against the husband's creditors, I may 
 observe, that where the husband is indemnified against his wife's debts, 
 that ^/lere there is no doubt of its validity." In this position he is cer- 
 tainly sustained and borne out by Stephens v. Olive, 2 B. C. C. 92, in 
 which the Master of the Rolls (Sir Lloyd Kenyon) held that the cove- 
 nants by the trustees, in the second settlement, to indemnify the husband 
 against the debts which the wife might contract after separation, was a 
 valuable consideration, and therefore that this settlement, although made 
 after the debt due to the plaintiff was contracted, was also good against 
 him." To the same effect is the decision of Mr. Justice Buller, (sitting 
 for the Lord Chancellor,) in the case of Compton v. Collinson, 2 B. C 
 C. 386 
 
 The case of St. John v. St. John, 11 Yes. Jr., 536, does not militate 
 against this position. The property settled on tlie wife, as her separate 
 maintenance, Ijeing thus entitled to be protected against the debts of the 
 husband, it cannot be made liable by the fact that slie delivered her hus- 
 band's deed to Sarah A. Evans, to the mother of the saitl Sarah, and her 
 statement that she had selected the negroes for her. This was the act 
 and statement of a, feme cover^t, and not binding on her after her dis- 
 coverture. 
 
 It was no doubt done with a good intention, and with the hope that
 
 178 SOUTH CAROLINA EQUITY REPORTS. [*227 
 
 thus the unfortunate and guilty connection might terminate. But in this 
 expectation she was deceived by the act of the said Sarah, as well as her 
 husband : she cannot therefore now be blamed for insisting on her legal 
 rights. The deed to Sarah A. Evans was preceded and succeeded by co- 
 habitation with Wheeler ; it cannot be considered as resting on a valuable 
 consideration. It might have been difficult to sustain it at all, were it 
 objected to as altogether invalid. In the case of Hill v. Spencer, Amb. 
 641, Lord Camden, however, allowed a bond to a common prostitute, for 
 an annuity of £50 per year, executed by a man who had kept her two 
 years, to stand. He said, " in this case the bond was not given for a 
 consideration, but teas voluntary." This is, I think, the true view in 
 which this conveyance must be regarded. As a voluntary conveyance, 
 it is void against existing creditors, and being set aside for them, subse- 
 quent creditors would be entitled also to come in and be paid. There is, 
 however, another view which makes it void against subsequent creditors, 
 ^.TQo-i if there should *be no creditors now unpaid who were such at the 
 -■ execution of the deed. The donor retained possession during his 
 life. This rendered the conveyance fraudulent against subsequent cred- 
 itors. 
 
 This view of the case defeats the marital rights of Meray to the prop- 
 erty, for until the debts are paid off, his wife has no legal estate in it : 
 her righl is a mere equity to have the balance which may be left, after 
 payment of debts, delivered and paid to her. It is the duty of the 
 Court, where the decree of the Court would be necessary, as it is in this 
 case, to put the husband legally in possession of the wife's fortune to 
 decree a settlement. 
 
 It is ordered and decreed that the defendants do deliver the property 
 conveyed to Sai*ah A. Evans, (now Meray,) by Wm. Wheeler, with the 
 issue and increase thereof, if any, to the Commissioner of this Court, and 
 that he do sell the same, on a credit of twelve months ; that out of the 
 proceeds he do pay such debts of William Wheeler as may remain un- 
 paid, after exhausting the other assets of the deceased, and the costs of 
 this suit, and that he do report the terms and trust of a settlement to be 
 made of tlie balance of the said proceeds on the said Sarah A. Evans. 
 It is also ordered and decreed that the Commissioner do advertise for the 
 creditors of William Wheeler, to render in to him their demands within 
 twelve months, and that he take an account of the assets of the intestate 
 in the hands of the plaintiff. 
 
 Johnson, J., and Harper, J., concurred. 
 
 John B Barnwell, and otliers, v. Robert W. Barnwell, Executor of 
 Wm, Hutson Wigg, and Wm. Hazzard Wigg. 
 
 When a trustee does an act importing a termination of the trust, as a final settle- 
 ment, the statute of limitations will run from that time but a payment to the 
 father of the cestui que trusts who had no authority to receive, is not to be regarded 
 as such a termination of the trust as will allow the statute to run from that time. 
 [*2o2] 
 
 Lapse of twenty years will raise the presumption of the payment of a legacy. [*233]
 
 *228] 
 
 CHARLESTON, MARCH, 1835. 179 
 
 A lapse of nineteen years after one of the legatees coming of age, will create such 
 presumption against him, wiicre the legacy liad been paid thirty-tive years before 
 to his father, and the executor was dead and his estate administereil and disposed 
 of l*2?A] 
 
 Tried before Chancellor De Saussure, at Coosawatchie, April, 1834. 
 
 "William Hazzard Wigg, by his will, dated day of , 1798, after 
 giving several pecuniary legacies to his widow and brothers, and par- 
 ticularly a legacy of £150 to his brother, James Cuthbert, bequeathed to 
 the children of his sister, Jane Hay Barnwell, the sura of £1U0; and 
 directed that the aforesaid legacies should be paid only when his executor 
 " could make it *convenient to his estate, and that until they were r^^ggo 
 paid, interest from his death should not be allowed on them ; and i ~ "^ 
 that after his debts and legacies were paid, his estate should be kept to- 
 gether for five years, commencing from the last payment of his debts and 
 legacies, and the crops in the meantime be divided between his son, 
 William Hutson Wigg, and his sons-in-law." The testator, after pro- 
 viding for his daughter, gave at the expiration of the aforesaid five ycai's, 
 all the rest and residue of his estate, real and personal, to his son, AVil- 
 liam Hutson Wigg, with a limitation over, in case of his death before 
 twenty-one years, and without leaving issue ; and appointed him execu- 
 tor. William Hutson Wigg qualified, and acted under the will, and in 
 the year 1822, upon a suit being brought against him, paid without op- 
 position or objection, to the representatives of James H. Cuthbert, the 
 legacy of £150 and interest from the day of , 1803. He died in 
 the year 1827, possessed of the mass of his father's estate, and by his 
 will merely appointed Robert W. Barnwell, the defendant, his executor, 
 but made no disposition of his property, which descended, and is now in 
 the possession of his only son and heir, William Hazzard Wigg, the 
 other defendant. At the death of the testator, William Hazzard Wigg, 
 his sister, Jane Hay Barnwell, was the wife of John B. Barnwell, senior, 
 and her children w^ere John B. Barnwell, junior, aged then about twenty 
 years, Jane Barnwell aged eleven years, Edward W. Barnwell aged nine 
 years, and Cuthbert Barnwell, aged three years, Jane Barnwell died in 
 the year 1817, a, feme covert. 
 
 This suit is brought by her representatives, and the surviving children 
 of Jane Hay Barnwell, who allege that they were entirely ignorant of 
 their uncle's will, and only discovered by accident recently that a legacy 
 was thereby bequeathed to them. 
 
 The bill is for an account of the administration of the estate of Wil- 
 liam Hazzard Wigg, and to compel payment of the aforesaid legacy from 
 the assets. 
 
 The executor denies by his answer ever having had notice of this 
 claim ; on the contrary says, that shortly after assuming the execution of 
 the will of William Hutson Wigg, he advertised according to law, for 
 all the creditors of the estate of his testator to present their demands ; 
 and after having applied the proceeds of the estate to the payment of the 
 debts, in about April, 1830, ^delivered possession to William r*c)oA 
 Hazzard Wigg, and relinquished all control over the property. •- 
 That so long a period has elapsed since the death of the testator of his 
 testator, William Hazzard Wigg, and so entirely has his estate been 
 merged in the estate of William Hutson Wigg, that he had never seen
 
 180 SOUTH CAROLINA EQUITY REPORTS. [*230 
 
 or read the will of William Hazzard Wigg until the bringing of this 
 suit : that if the plaintiffs have any cause of complaint against him, as 
 executor of William Hutson Wigg, the same did accrue above four years 
 before the commencement of this suit, and therefore, being a demand 
 within the true reason of the Act of Assembly made for the limitation of 
 actions and avoiding suits, should have been pursued, if at all, within 
 that time. That from the copies of certain papers in his testator's hand- 
 writing, and other memoranda found in his possession, and which are 
 brought into Court, as exhibits, he believes firmly, that the legacy was 
 paid to the father of the jiittiniiff, who was then, at the time of Jiis 
 death, possessed of a large estate, real and 2:)ersonal, which was after- 
 wards distributed among his children : that the lapse of time, together 
 with the presumption of payment from the above facts, ought to bar the 
 plaintiffs, and that from the intimacy which existed for many years be- 
 tween the plaintiffs and his testator, William Hutson Wigg, and from 
 the pecuniary circumstances of the plaintiffs, a demand for the payment 
 of the legacy would long since have been made, had not the plaintiffs 
 been convinced that the same was satisfied ; and that their laches ought 
 to preclude them from all claim to the aid of the Court. 
 
 The other defendant, William Hutson Wigg, answers to the same 
 effect, and in nearly the same words. The exhibit filed with the bill, as 
 a copy of the will, was admitted to be a correct copy, and the plaintiffs, 
 to be the children of Jane H. Barnwell ; their ages were also admitted 
 as above stated, and the bill and orders, in the case of Mrs. Ann Cuth- 
 bert, administratrix of James H. Cuthbert v. William Hutson Wigg, 
 executor, were produced as evidence. It was also admitted for the de- 
 fendants that the plaintiffs have been for a long time in very necessitous 
 circumstances. The exhibit, filed with the answer, as proved to have 
 been taken out of the family Bible of the Wigg family, is in the following 
 words, viz : — " Made the following settlement this day with Mr. W. H. 
 Wigg. He receipts all claims against me in favor of his father's estate ; 
 5^cjo-|^-i also on an order given him by D. Smith on me. *I gave him a 
 
 final discharge on a legacy left my children in his father's will, 
 which I acknowledge for them to have received this day, 1st December, 
 1799." 
 
 (Signed) John B. Barnwell, 
 
 William H. Wigg. 
 Witnessed by Benjamin Wood. 
 
 The Chancellor decided against the claim of the plaintiffs, and ordered 
 
 the bill to be dismissed, but without costs. 
 
 From this decree the plaintiffs appeal upon the following grounds: — 
 1. Because there is sufficient in the evidence, answers, and language of 
 
 the will of the testator, William H. Wigg, to repel the presumption of 
 
 payment to the plaintiff, and the payment to the father of the plaintiffs 
 
 cannot be sustained on any principle of law or equity. 
 
 TreviUe, for the appellants, contended that presumption of payment 
 arising from lapse of time, may be repelled, there being a distinction 
 between such presumption and the statute of limitations.— 6 Barn, and 
 Cres. 603. The one is an absolute and unqualified legal bar, the other 
 a legal presumption from a fact.— Blanch, on Lim. 79. The ignorance
 
 *231] CHARLESTON, MARCH, 1835. 181 
 
 of the legatees of the legacy to them, repels the presamptioa of payment. 
 — I Fonb. 181; Ord v. Smith, Sel. Cha. Ca. 11. The executor is en- 
 trusted with the execution of the will ; it was his duty to give notice to 
 the legatees He is not bound to prove the will. — Toll. 44-5. And if this 
 presumption is to exist in all cases, he might conceal the will when he is 
 the residuary legatee, (as is the case here,) and thus acquire gain to him- 
 self by defeating every other legacy. In no case will presumption of the 
 payment of a legacy arise under twenty years. — 2 Ves. Jr. SVl. It can- 
 not arise until the legatees are of full age, and entitled to receive ; and 
 the minority of the plaintiffs prevent it from arising against them, the 
 youngest not having attained full age twenty years before the filing of the 
 bill. If, however, such presumption does arise, the circumstances, he 
 insisted, repelled it, to wit: the minority of the plaintiffs ; their ignorance 
 of the legacy ; the admission of both the defendants that they have not 
 paid it; the fact that Cuthbert's legacy was not paid till suit brought in 
 1822 ; and, above all, the showing of the defendants that payment was 
 made to the father of the plaintiffs, who was not *authorized to r^oqo 
 receive ; and the inference is irresistible that the executor did not, '- 
 before or after that time, pay the legatees. 
 
 BaileAj, contra. In Moore t'. Porcher (Charleston MS. cases) it was 
 held, that when an act is done purporting to be in discharge of the trust, 
 the statute of limitations begin to run. The payment to the plaintiffs' 
 father, whether authorized or not, was so intended, and from that time 
 the statute runs. In any event, lapse of time must be a bar upon the 
 presumption of payment. Thirty five years have elapsed since the plain- 
 tiffs were entitled to demand payment, and since it was made to their 
 father. After such lapse of time, the Court will presume that the father 
 had authority to receive, as guardian or otherwise — everything will be 
 presumed in favor of the defendants ; and when there are other circum- 
 stances, less time than twenty years will create such presumption. He 
 cited 1 Black. Com. 461, 462; 2 Atk. 371; Toller. 313; 1 Bail. 59; 
 Rop. on Leg. 609; 2 Ves. Jr. 11. 
 
 Johnson, J. It is conceded that the statute of limitations will not 
 bar a legacy, and such clearly is the general rule. But it appears from 
 the evidence that the legacy claimed by the plaintiffs under the will of 
 their grandfather, William H. Wigg, was paid by his executor to their 
 father, John B. Barnwell, as long ago as 1799, and it is insisted that this 
 was professedly intended as a payment of the legacy, and an execution of 
 the trust imposed by law, and that therefore the statute would begin to 
 run from that time. The cases of Starke & Starke, published in the 
 Carolina Law Journal, p. 510, and Moore t'. The Administrator of 
 Porcher, decided at this place, I think at February Term, 1830, are 
 relied on in support of this position. The principle is certainly a correct 
 on«, that when an executor or other person, acting in a fiduciary charac- 
 ter, does an act importing a termination of the confidence or trust, as a 
 final settlement and account with the legatee or cestui que trust, he will be 
 protected by the statute against a subsequent account, unless he has been 
 guilty of fraud, and even then the statute will run from the discovery of 
 the fraud. But this case does not fall within that rule. The trust re- 
 VoL. I.— 35
 
 182 SOUTH CAROLINA EQUITY REPORTS. [*232 
 
 posed in the executor was that he would pay the legacy to the plaintiffs, 
 or, being minors, to some one who might be duly authorized to receive. 
 In law, the father was not, as a general rule, entitled to receive it, and 
 the payment to him can no more be regarded as a fulfilment and 
 *termination of the trust, than if he had paid it to a stranger. 
 '" -^ On the contrary it was in direct violation of it. The rule sup- 
 poses that the legatee or cestui que trust has at least notice that the 
 executor or trustee regards himself as having been discharged of the 
 trust, and maintains that they are bound to insist on their rights 
 within the period limited by the statute, but it cannot be supposed that 
 they would be bound by an account with, or notice to a stranger. 
 
 No case has been cited at the bar to show that the payment of a 
 legacy will be presumed after a lapse of twenty years, nor does my 
 memory supply me with any particular case in which it has been ruled; 
 yet the impression on my mind that the precise point has been rule(3 is so 
 strong, that I can hardly be mistaken, and I think that upon referring to 
 the unreported cases, more than one of the sort will be found. However 
 that may be, the universal tendency of our own decisions has been to cut 
 down the time necessary to the legal presumption of facts from that 
 established in the English Courts. The difference in the time necessary 
 to bar an ejectment in England and in this State, as well as personal 
 actions, laid the foundation for this diversity of rule, and has been made 
 the foundation of a new rule. On this principle it was held in M'Elwee 
 V. Hill, 2 Cons. Rep. 130, that a possession of twenty years was sufficient 
 to authorize the presumption of a grant to land, thirty years being re- 
 quired according to the English rule ; and still more strikingly analogous 
 is the case of Wright v. Wright, 2 M'C. Ch. Rep. 197, where upon a 
 bill filed against an executor for an account, it appeared that sixteen 
 years before the executor had rendered an ex parte account to the ordi- 
 nary, the accounts appearing regular, it was held that this was a protec- 
 tection against a further accounting. There is perhaps no case in which 
 such a protection is more necessary than in the cases of executors and 
 administrators. Their duty is not limited to a particular transaction, 
 which, from its magnitude and importance, would point out the propriety 
 of preserving the evidence of it, but of those various, minute, and compli- 
 cated details, each being of itself comparatively unimportant, and there- 
 fore the more likely to be neglected. Twenty years gives abundant time 
 to settle the affairs of the most deranged and complicated estate, and the 
 restless and migratory habits of our people, by which means proof per 
 testes is every day rendered more difficult of attainment, is, I think, 
 ^^no i-1 abundant reason for *cutting down the time to as short a time as 
 may be consistent with sound policy. I take it therefore that 
 twenty years is per se sufficient to authorize the presumption of the pay- 
 ment of a legacy. Starkie, in his Treatise on Evidence, p. 1235-6, says, 
 that this presumption is founded on an artificial rule, by which we arrive 
 at a conclusion without the process of reasoning, and supplies the place 
 of proof. There is also a natural presumption arising from lapse of time 
 independently of the artificial rule, and although it does not necessarily 
 lead to a conclusion, yet in weighing other circumstances, it enters 
 largely into the account. " It is hard to prove old things, and therefore
 
 *234] CHARLESTON, MARCH, 1835. 183 
 
 less proof will be required." Onr confidence in history, and even Revela- 
 tion, is in some degree built on this foundation. 
 
 About thirty-five years had elapsed between the death 'of the testator 
 and the filing of the bill ; and although the presumption of payment of 
 the legacy to the plaintiffs during their minority, would not arise on 
 account of their incompetency to receive, yet it does not follow that there 
 was not some one duly authorized to receive it for them, and it may be 
 well conceded that this length of time would greatly increase the diffi- 
 culty of furnishing strict proof More than twenty years had elapsed 
 between the period at which some of the plaintiffs attained full age, and 
 the filing of the bill, and with respect to them the legal presumption must 
 operate. The legacy, although of a gross sum, was equally distributable 
 amongst them, each was entitled to receive his own dividend on his 
 attaining his majority, and the non-payment of one would not authorize 
 the presumption that the other was not paid. Cuthbert Barnwell, the 
 youngest of the plaintiffs, attained full age about nineteen years before 
 the filing of the bill, and although in his case the artificial rule will not 
 operate, yet considering the great length of time since the death of the 
 testator, his neglect to prosecute his claim on his attaining full age, and 
 taking it in connection with the circumstances summed up by the Chan- 
 cellor, well waiTants the conclusion at which he has arrived. More than 
 the third of a century had elapsed, all the other concerns of the estate of 
 the testator had been finally settled, the executor was dead, and his 
 estate fully administered and disposed of accordingly, and plenary proof 
 was not to be expected. The payment of the legacy to the plaintiffs' 
 father by the executor, in IT 99, is relied on as repelling the presumption 
 of payment to the plaintiffs : but if there is anything* in it, it r^goc 
 leads to a directly opposite conclusion. Men do not ordinarily ^ 
 and voluntarily incur the responsibility of paying money on the one hand, 
 or receiving it on the other, without authority ; and in this case we have 
 but to call in the aid of the legal presumption, to arrive at the conclusion 
 that the father was legally authorized to receive the legacy. Again, let 
 it be conceded that the payment was without the authority of law: — It 
 was then a trust reposed by the executor in the father, to administer it 
 for the benefit of the plaintiffs. Who was so much interested or so likely 
 to employ it in the way best calculated to promote their interest ? It is 
 a slander on parents to suppose that they are indifferent to, or careless 
 of, the interest of their children. Some are, but they are exceptions to 
 the general rule. Is there not, then, independent of a legal presumption, 
 much reason to believe that the father has discharged this trust faith- 
 fully, and that if he were now living, he would be able to show it satis- 
 factorily ? I have not adverted to the fact stated in the Circuit Court 
 decree, that the plaintiffs have derived a considerable estate from their 
 father, because I understand that it was made on a concession by the 
 counsel on the trial below which he has since ascertained was. not war- 
 ranted by the fact. If that was so, the plaintiffs would be unquestional)ly 
 liable to account to the defendant for the legacy received by their father, 
 upon precisely the same principle that they seek to charge him; but from 
 the view before taken that matter has l)ecome unimportant. 
 
 Motion dismissed, and the decree of the Circuit Court is affirmed. . 
 
 O'Neall, J., and Harper, J., concurred.
 
 184 SOUTH CAROLINA EQUITY REPORTS. [*235 
 
 Joseph W. Allston and John H. Allston, v. The Bank of the State 
 OF South Carolina. 
 
 Settlement on husband and wife, to their joint use during coverture, and to the 
 survivor; and power given to the trustee to sell and invest the proceeds, suWect 
 to the same trusts: the trustee sold, and the husband afterwards by deed, assigned 
 his interest in the proceeds, to the trustee, giving him authority to reinvest for 
 the benefit of his wife, in such way as she might direct; and the trustee accord- 
 ingly reinvested to the sole and separate use of the wife during life, and if she 
 died without leaving issue, then to the husband: — Held, that the husband had 
 the right to change the terms of the trust; and that the rights of creditors must 
 be determined by the interest he took in the property last acquired. [*239] 
 
 A contingent remainder is not subject to the lien of a judgment; but an assignment 
 of it for a valuable consideration will be supported in equity and specifically 
 enforced, as an agreement: therefore where the remainder man against whom 
 there were judgments before the contingency on which betook happened, assigned 
 his interest, it was held, that the lien of the judgments must be subject to the 
 equity of the assignment. [*242] 
 
 John Adamson, the father of Amelia Delesseline, wife of Francis A. 
 Delesseline, by his last will and testament, devised to his said daughter, 
 ^g„„-, amongst other things, certain lots in the town of *Camden, in fee 
 "^ -' simple ; and on the 25th July, 1816, after the death of the testa- 
 tor, the said Francis A. Delesseline, and his said wife, joined in a con- 
 veyance of the said lots, to Lewis Ciples, but upon what consideration 
 does not appear, nor is it material to the case. On the 11th May, 181t, 
 the said Lewis Ciples, by deed, reciting the conveyance above referred to, 
 in consideration of five dollars, and in pursuance of the intention of the 
 parties to the said deed, conveyed the said lots to Francis G. Delesseline, 
 father of the said Francis A. Delesseline, in trust for the joint use and 
 benefit of the said Francis A. Delesseline and his said wife, during their 
 coverture, and from and immediately after the decease of either of them, 
 to the survivor, forever ; and authority is thereby given to the said trustee, 
 with the consent of the said Francis A. Delesseline, and his said wife, to 
 sell and dispose of the said premises, and to re-invest the proceeds in such 
 property as they should direct, " which shall be subject, in the hands of 
 the said Francis G Delesseline, to the same trusts, conditions and limita- 
 tions, which are declared of and concerning the premises hereby conveyed." 
 In December, 1827, the trustee, with the consent of the said Francis A. 
 Delesseline, and his said wife, sold and conveyed the premises to Eliza- 
 beth Rogers, in consideration of the sum of $5000. 
 
 Francis G. Delesseline afterwards, on an application to the Court of 
 Chancery, was permitted to resign his trust, and by an order of the Court, 
 John G. Spidle, was substituted in his stead ; and on the 2d July, 1830, 
 the said Francis A. Delesseline, by deed, assigned to the said John G. 
 Spidle, the trustee, all his interest in the sum of $4000, part of the pro- 
 ceeds of the sales, to Elizabeth Rogers, then standing to the credit of the 
 said trustee, in the Planters' & Mechanics' Bank, in trust for the sole 
 and separate use of his said wife, without being subject to his debts o^ 
 disposition, with power to invest the same, and the income or interest 
 arising therefrom, " in such property, and with such limitations, and to 
 such uses," as his said wife might direct and appoint. In pursuance of 
 this authority, Spidle, the trustee, invested the fund in a house and lot,
 
 *236] CHARLESTON, MARCH, 1835. 185 
 
 in Wentvvorth street, Charleston, and Mr. Millikcn, from whom he ]inr- 
 chased, conveyed the same to him by deed, bearino; date filh July, 1S3U, 
 wherein it is declared to be, in trust, for the sole and separate use of the 
 said Amelia, during her natural life, without being subject to *the r^^p.;.- 
 debts of her husband, and at her death, for her issue, if any ; but L ""^' 
 if she died before her husband, without leaving issue, in trust for hor 
 husband, the said Francis A. Delesseline, in fee In 1831, the phiintiffs 
 indorsed a note for $500, for the accommodation of Francis A. Delesse- 
 line, which was discounted at the Branch Bank at Georgetown, and in 
 consequence of his insolvency, the payment has devolved on the plaintiffs. 
 To indemnify them against this liability, the said Francis A. Delesseline, 
 on the 20th June, 1832 (his wife then being alive,) by deed assigned, 
 amongst other things, all the right, title and interest, which he then had, 
 or might thereafter have, in the house and lot in Wentworth street, above 
 referred to ; and Amelia Delesseline, the wife, died shortly after, without 
 issue. 
 
 Between the year 1823 and the 21st April, 1828, sundry judgments had 
 been obtained and entered up against Francis A. Delesseline, in Charleston 
 district, and on the day last mentioned, the defendant, the Bank, ol)tained 
 and entered up judgment against him for $5050 ; and the estate limited 
 over to Francis G. Delesseline, by the deed of Mr, Milliken to John G. 
 Spidle, the trustee, having become vested in the said Francis A. Delesse- 
 line, on the death of his wife without issue, executions founded on the 
 judgments before mentioned, w^ere levied on the house and lot in Went- 
 worth street, which was sold on the 5th of November, 1832, and purchased 
 by the Bank for $3200 ; notice of the assignment of Francis A. Delesse- 
 line, to the plaintiffs, having been given at the time of the sale. Of this 
 sum, it appears that about $800 were applied to the payment of older 
 judgments, and the remainder to the judgment of the Bank. 
 
 The object of the bill is to charge the house and lot in Wentworth 
 street, or the funds arising from the sales thereof in the hands of the 
 Bank, with the note indorsed by the plaintiff's for the said Francis A. 
 Delesseline. The judgments against Delesseline, which have been paid 
 off by the proceeds of the sheriff's sales, being older than the judgment 
 of the Bank, were necessarily entitled to priority, and the remainder not 
 being sufficient to pay both the Bank judgments and the note indorsed by 
 the plaintiffs, and to secure which Delesseline assigned to them his interest 
 in this property, the question is, which of them is entitled to the prece- 
 dence ? The Chancellor (De Saussure) being with tlie *defendant r*238 
 on this question, dismissed the plaintiff's bill, and this is an appeal 
 from that decision, on the following grounds : 
 
 1. That the Camden estate being vested in Mrs. E. Rogers prior to 
 the Bank's judgment, no lien attached thereon ; and the Bank has no 
 equitable. claim to subject the property in Wentworth street to the same 
 uses. 
 ^2. That the interest of Francis A. Delesseline in the Wentworth street 
 property anterior to the death of his wife, was not subject to the lien of 
 a judgment; and was well mortgaged or assigned to the AUstons, to 
 indemnify them for their responsibility ; and the decree should have either 
 directed the notes to be paid, or have ordered a foreclosure for that 
 purpose.
 
 186 SOUTH CAROLINA EQUITY REPORTS. [*238 
 
 Dunkin, for the appellants. The sale of the Camden property was 
 before the Bank obtained judgment ; no lien, therefore, attached to that. 
 It is true, that the original trust deed required that the proceeds of the 
 property, if sold, should be to the same uses; and that the terms of the 
 trust are clianged ))y the deed of the Wentworth street property. But 
 who has the right to complain ? not the Bank ; it had no interest then — 
 no one but Delesseline, the cestui que trust; and there can be no just 
 reason why a party, for whose benefit a trust is created, may not waive or 
 dispose of it. 
 
 Before the death of his wife, Delesseline's interest in the Wentworth 
 street property was a contingent use, subject to the same rules which 
 govern contingent remainders, and was not the subject of levy. — 4 Kent 
 Com. 293 ; Prest. 301 ; Fearne 365-6. Levy can only be made on a 
 certain, vested, and tangible interest, of which the sheriff can put the 
 purchaser in possession ; choses in action, claims purely equitable, and 
 contingent interests, not partaking of this character, are not the subject 
 of levy and sale. — 1 Black. Rep. 30 Doe v. Jones; 4 Cora. Dig. 35, 
 Tit. Estate ; Harrison v. Maxwell, 2 N. & M'C. 350 ; Rabb v. Akin, 
 2 M'C. Ch. 125-6; 1 John. Ch. Rep. 52; H John. Rep. 350; 1 Pet. 
 442 ; 1 Bail. 237 ; 8 East. 484. Although the interest of Delesseline 
 was not subject to the lien of the judgment, it was assignable by him, and 
 the assignment or mortgage will be sustained and enforced in equity as 
 an agreement. Fearne, 550 ; Wright v Wright, 1 Yes. jr. 409. 
 
 ^t-,qni *^- ^- Smith, contra — Contended that the deed for the Went- 
 -■ worth street property, varying in its terms the original trust, was 
 fraudulent as against creditors ; and that the interest of Delesseline, being 
 a mere possibility, was not the subject of assignment. Cited 8 T. R. 88 ; 
 1 H. Black. 30; Eq. Ca. 30; 4 Cora. 538; 1 Prest. on Estates, Y5 ; 2 
 Vern. 563. As to the right of levy ; 1 Yates, 427 ; 2 Bin. 80, 89 ; 8 Mass. 
 Rep. 551. 
 
 Dunkin, in reply : A possibility cannot be assigned at law, but it may 
 pass by way of agreement in equity. 
 
 Johnson, J. (After making the foregoing statement.) There is no doubt, 
 that under the deed from Lewis Ciples to Francis C Delesseline, of the 
 17th May, 1817, Francis A. Delesseline had a vested interest in the 
 Camden property, to the extent of one half for life, with a remainder in 
 fee of the whole upon the death of his wife without issue ; and it seeraed 
 to be conceded on the argument, that the lien of the judgments due the 
 Bank would have attached at least on his interest for life : and the power 
 given to the trustee by that deed, to sell and dispose of that property, 
 being limited to a re-investment of the proceeds in other property, to the 
 " same trusts and conditions, and limitations" as are expressed in that 
 deed, the Chancellor held, that Francis A. Delesseline had no autho- 
 rity to direct the investments of it to other uses, or upon other condi- 
 tions and limitations, and therefore directed that the trusts declared in 
 the deed from Mr. Milliken to John G. Spidle, the trustee for the house 
 and lot in Wentworth street should be reformed in such a manner as to 
 correspond with those on the deed from Lewis Ciples to Francis G. De- 
 lesseline ; and the foundation of the Circuit Court decree is, that the
 
 *2o9] CHARLESTON, MARCH, 1835. 187 
 
 deed thus reformed would give to Francis A. Delesscliiie an interest or 
 estate in the house and lot in Wentworth street, on which the lien of the 
 judgment of the Bank would attach, and that being older than the assign- 
 ment to the plaintiffs, was entitled to the priority. As before remarked, 
 the interest which Francis A. Delesseline took in the Camden pro[)erty, 
 under the deed from Lewis Ciples to Francis G. Delesseline, was one 
 half for the joint lives of himself and his wife, with a remainder in fee of 
 the whole, upon the contingency of the wife's dying before him witliout 
 issue. This, by the sale to Elizabeth Rogers, was converted into money, 
 and as between Francis A. Delesseline, and his wife, and their trustee, I 
 cannot conceive of any possible legal obstruction to his making any dispo- 
 sition* of his interest in it that he might think proper, provided r^cyjr^ 
 it did not operate to the prejudice of the wife. He was under no ^ " 
 legal disability, nor was there any imposed on him by the deed : indeed 
 I cannot conceive how it is possible for one, by his own act, to put it 
 out of his power to dispose of that which belongs to him. His assign- 
 ment of this fund to the trustee, Spidle, by the deed of 3d July, 1830, 
 does not deprive the wife of any interest which she took under the deed 
 from Lewis Ciples to Francis G. Delesseline ; on the contrary, it confers 
 on her the sole power of directing the investment of it, instead of sharing 
 it with him — it gives her the whole, instead of a moiety during life — and, 
 as in the latter deed, limits over the remainder to her in fee, in the event 
 of her surviving him ; there cannot therefore be any question about the 
 power of Francis A. Delesseline to have made this disposition of the 
 funds. If the wife had survived, and this had been a bill to subject the 
 property to the payment of the debts of Francis A. Delesseline, another 
 and a very ditferent question would have arisen ; but her claims are now 
 out of the way, and this is a contest between creditors for priority, and 
 having shown that the power of Francis A. Delesseline, over the fund in 
 bank to the extent of his interest, on which there could be no legal lien, 
 was absolute, it follows that the rights of the creditors must be deter- 
 mined by the interest which he had in the house and lot in Wentworth 
 street under the deed from Milliken to Spidle. By referring to the dates, 
 it will be seen that when the judgment of the Bank was obtained on the 
 21st April, 1828, the fund was in bank, and that it was invested by the 
 trustee in the house and lot in Wentworth street, on the 5th July, 1830 — 
 that Francis A. Delesseline assigned his interest in it to the plaiiitilfs on 
 the 20th June, 1832, and that the remainder became vested in Francis 
 A. Delesseline, on the death of his wife shortly after — and out of this 
 state of things the following questions arise : 
 
 1st. Whether Francis A. Delesseline had such an interest in the house 
 and lot. as was subject to the lien of the judgment of the Bank ? 
 
 2d. Whether, if he had not, it was bound by the assignment made by 
 him to the plaintiffs, for the payment of the money due them ? By the terms 
 of the deed from Milliken to Spidle, the trusts were limited to the use of 
 Amelia Delesseline, the wife, for life, and at her death to her issue,.and on her 
 dfeath without issue, over to Francis A. Delesseline in fee ; so that all the 
 interest which he had, was a fee simple dependent on the contingency of his 
 wife dying * without issue, he surviving — an interest or estate r^ni, 
 falling directly within Mr. Fearne's definition of a contingent ^ 
 remainder, as contra-distinguished from a vested remainder — a remainder
 
 188 SOUTH CAROLINA EQUITY REPORTS. [*241 
 
 in an estate so limited, as to depend on an event or condition wliicli may 
 never happen or be performed. — Fearne on Rem. 1. And I feel some 
 difficulty in demonstrating that this is not such an estate or interest as 
 would be subject to the lien of a judgment, the proposition presenting 
 itself to my mind as one which is self-evident. "Wherever there is a lien, it 
 follows necessarily, that the thing to which it attaches may be sold in 
 satisfiiction of the judgment ; it must therefore have a present existence 
 and visible form to enable the sheriff to take possession of, and transfer 
 it to the purchaser, if it is capable of manual delivery. It is for this 
 reason that choses in action are not the subject of levy and sale ; they 
 have in themselves no visible form, or tangible existence, and are the 
 mere representatives of something more substantial, and are not within 
 the reach of the sheriff, nor is he capable of transferring them. Hope- 
 less indeed would be the condition of an unfortunate debtor, if not only 
 what he had, but also what he might, by any possibility afterwards ac- 
 quire, was the subject of execution and sale : purchasers would not 
 readily put a high estimate on such possibilities, and the danger of sac- 
 rifices would itself oppose a strong reason for not subjecting them to sale. 
 No case directly in point has been cited, either from the English or 
 American authorities, and it is, I think, a reasonable inference, that it 
 has been regarded as admitting of no doubt ; indeed, I did not under- 
 stand the counsel for the Bank, as relying on the binding efficacy of their 
 judgment, until the life estate of Mrs. Delesseline was terminated by her 
 death. The case of Bozart v. Parry et al., 1 Johnson's Ch. Rep. 52, 
 bears however some analogy to it. There A. being seized of land, agreed 
 to sell to B., and received a part of the consideration, and undertook to 
 make titles to B., when he should pay the balance. Two years after- 
 wards, the balance still being unpaid, B. assigned A. 's contract to S. , and it 
 was held that, although S. might have compelled the specific performance of 
 the contract, yet his interest in the land was a mere equity, and not the 
 subject of levy and sale under an execution against him at the suit of a 
 third person ; and that judgment was affirmed on an appeal to the Court 
 of Errors. But Francis A. Delesseline could not, himself, have trans- 
 ♦24-91 f^'^^^d this remainder by a *common law conveyance of lease and 
 "'-' release, upon the principle that one cannot grant that which he 
 does not possess. Fearne on Rem. 461, 537. And it follows necessar- 
 ily, that the sheriff, the agent appointed by law to represent him in 
 making the title to one who purchased under a sale by fieri facias, is 
 incompetent to do so; the judgment could not therefore have had alien, 
 because it would have been inoperative. It seems however to be well 
 settled, that although a contingent remainder is not transferable by the 
 ordinary common law conveyance, yet an assignment of it for a valuable 
 consideration will be supported in equity as an agreement, which will be 
 specifically enforced. Of this, the case of Wright v. Wright, 1 Ves. 
 409, cited at the bar, will suffice as an example. There a testator de- 
 vised lands to his two daughters and their heirs ; but that if either of 
 them should marry without the consent of his executors, the daughter so 
 marrying should only have an estate for life therein, and if either of them 
 should die unmarried, to his son, R. in fee, on his paying £500 to the 
 surviving daughter. R., the son, in the lifetime of both the daughters, 
 in consideration of love and affection, granted his interest to his young-
 
 *242] CHARLESTON, MARCH, 1835. 189 
 
 est son, Gr. ; — R., the son, first died, and afterwards one of tlie dan^'-litcrs 
 died unmarried, and upon a bill filed by the eldest son of 11. eliiimiii'^ 
 the estate, as heir at law to his father on the payment of the ITjOO to 
 the surviving daughter, it was held by Lord Hardwicke, that he was 
 bound by the assignment of the father to the youngest son, G : and he 
 remarks, that the Court admits the contingent interest of a term for 
 years to be disposed of for valuable consideration, though the law does 
 not, and that there was no difference between allowing the assignment of 
 the possibility of a chattel real, and the possibility of an inheritance. 
 
 There is nothing novel or extraordinary in the doctrine of this and 
 other cases like it, several of which are collected by Fearne in his Treatise 
 on Executory Devises, p. 439, 522, et seq. All that is necessary to a 
 valid contract is, that it should be made by parties competent to con- 
 tract, that there should be a good consideration, and that the thing to be 
 done or performed should be lawful and possible ; and I cannot perceive 
 why one may not bind himself to do, or perform an act, his power over 
 which depends on a contingency, if that contingency should happen, as 
 well to do or perform one at a future day, which he is competent to do at 
 the time. If the contingency does happen, the moral obligation is pre- 
 cisely the *same, and it is not opposed by any rule of positive r*c)j^q 
 obligation, and equity will enforce its execution precisely to the ^ 
 same extent. I ilm therefore very clearly of opinion, that Francis A. 
 Delesseline was bound by his assignment to the plaintiffs, and that equity 
 would have enforced that contract against him. 
 
 But it has been insisted in the defence, that conceding the assignment 
 of Delesseline to the plaintiffs to be valid, yet, being the assignment of a 
 mere possibility, no lien would attach until the contingency on which it 
 depended took place — that is to say, the death of Mrs. Delesseline with- 
 out issue — that in the surae instant the lien of the judgment attached, the 
 remainder having become vested in Francis A. Delesseline, and being 
 the oldest, ought to be preferred : and the defence has been made to rest 
 principally on this ground. There is some plausibility in this argument, 
 but it will not bear examination. It has been before shown, that the 
 judgment had no lien on the property until the remainder vested in 
 Francis A. Delesseline. It attached, then, in virtue of the title in him, 
 and that was burdened with the equity arising out of the assignment to 
 the plaintiffs, a claim as meritorious as that of the Bank. Deriving their 
 right from Delesseline, the Bank could not be in a better situation than 
 he would have been. Suppose that in the instant the remainder vested, 
 he had granted it to the Bank with notice of the prior assignment to the 
 plaintiffs, would that have superseded the prior equity of the plaintiffs? 
 Certainly not. And what magic is there in the lien of a judgment,^ in 
 itself a mere equity, which gives a higher claim to the property on which 
 it attaches than would a conveyance in fee-simple ? 
 
 It is therefore ordered and decreed that the decree of the Circuit Court 
 be reversed, and that it be referred to the Master, to ascertain whether 
 anj-, and what amount remains due on the note endorsed by the plaintiffs 
 for Francis A. Delesseline, and discounted at the Branch Bank in George- 
 town ; and whether any, and what amount of principal or interest has 
 been paid by the plaintiffs, on account of the said note ; and that the 
 plaintiffs be credited in the books of the said Bank with the amount of
 
 190 SOUTH CAROLINA EQUITY REPORTS. [*243 
 
 the principal and interest, if any, which may remain due and owing 
 thereon, and that the defendants do pay to the plaintiffs the amount, if 
 any, which they may be found to have paid on account of the principal 
 and interest of the said note — costs to be paid by the defendant. 
 
 * 
 
 244] 
 
 *Henry Deas and Wife, vs. Ann Julia Horry, Charles D. 
 Manigault and Wife, and Edward R. Laurens and Wife. 
 
 A remaimler cannot be limited after a fee conditional. [*246] 
 
 Testator by his will devised an estate to liis son, E L., for life, and at his death to 
 the first son of E. L., and the heirs of his body lawfully issuing, and in default 
 of such issue, to the second, and every other son of E. L. successively and in the 
 order of birth, and to the several heirs of their bodies in like manner; and in 
 default of sons, with like limitations to the first, second and every daughter of 
 E. L. and successively in the order of their birth, and the several heirs of their 
 bodies, &c.: and died in 1785, leaving one son, E. L., and a daughter. His son, 
 E. L., the tenant for life had a son and three daughters; the son of E. L. died in 
 1797, without issue, and his father in 1831: — Ileld, that the first son of E L. 
 took a fee conditional; that all the remainders after the devise to him, were void; 
 and that on his death, in 1797, the fee reverted to the right heirs of the testator. 
 [*247] 
 
 Although the testator died before the Act of 1791, abolishing the right of primogen- 
 iture, the reversion must go to those who were heirs at the time the fee conditional 
 determined. [*li48] 
 
 A possibility of reverter is not devisable, (per Harper, J.) [*248] 
 
 Before Chancellor De Saussure, Charleston, January, 1834. 
 
 This bill was filed for partition between the plaintiffs and defendants, 
 of a plantation called Hickory Hill, and for a moiety of the rents and 
 profits, from the death of Elias Lynch Horry, in 183L 
 
 In 1783, Elias Horry, the father of said Elias Lynch Horry, deceased, 
 and of the plaintiff, Margaret Deas, made his last will and testament, 
 duly executed, to pass real estate, containing the following clause : 
 
 "I give and devise unto my son, Elias Lynch Horry, for and during 
 the term of his natural life, without impeachment of or for any manner of 
 waste, all that (my) plantation or tract of land, situate in Prince George's 
 Parish, in this State, called or known by the name of Bear Hill, [here the 
 property is particularly described,] and /ro?n and after Jiis decease, to the 
 Jirst son of the said Elias Lynch Horry, and the heirs of the body of 
 such first son, lawfully issuing, and for default of such issue, then to 
 the second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, and 
 all and every other, the son and sons of the said Elias Lynch Horry, 
 severally and successively and in remaiyider, one after another as they 
 and every of them shall be m seniority of age and priority of birth, 
 and the several and respective heirs of the body and bodies of all and 
 every such son and sons, lawfully issuing, the elder of such sons and 
 the heirs of his body, lawfully issuing, being aliuays to be preferred 
 and to take before the younger of such sons, and the heirs of his or 
 their body or bodies issuing; and for default of such issue, then to the 
 first daughter of the said Elias Lynch Horry, and the heirs of the body 
 of such first daughter, lawfully issuing and for default of such issue,
 
 *244] CHARLESTON, MARCH, 1835. 191 
 
 then to the second, third, fourtli, fifth, sixth, seventh, eighth, niiitli, tenth, 
 and all and every other the daughter and daughters of the said Ellas Lvnch 
 Horry, severally and successively, and in remainder, one after anolhor, as 
 they and every of them shall be in seniority of age and priority of I)irth, 
 and the several and respective heirs of the body and bodies of all and 
 every such daughter and daughters lawfully issuing, the elder of such 
 daughter and *the heirs of her body, lawfully issuing, being always r^jcn -r- 
 to be preferred and to take before the younger of such daughters L 
 and the heirs of her or their body or bodies issuing, subject nevertheless 
 to the several limitations, conditions, restrictions and provisions herein- 
 after mentioned of and concerning the same" — and died in 1785, leaving 
 the said will in full force. Elias Lynch Horry entered on the devised 
 premises, married and had a son named Elias Lynch Horry, who died in 
 the month of July, 1797, unmarried and without issue. Elias Lynch 
 Horry, the father, died on or about the , 1831, leaving three daugh- 
 ters, Ann Julia, Horry, Emma L., who intermarried with Charles D. 
 Manigault, and Margaret H, who intermarried with Edward R. Lau- 
 rens, his sole heirs at law ; and now the said Margaret Deas and the said 
 three daughters of Elias Lynch Horry, are the sole heirs at law of the 
 testator, Elias Horry. 
 
 The plantation named Bear Hill, in the said devise, has been exchanged 
 for the plantation called Hickory Hill, and this latter is in all respects 
 substituted in the place of the former. The plaintiffs contend, that under 
 the facts stated, and the law of this State, Mrs. Deas is entitled to one 
 moiety of the plantation, and of the rents and profits from the death of 
 the tenant for life, Elias Lynch Horry. The defendants demurred to 
 the bill. 
 
 The Chancellor sustained the demurrer and dismissed the bill, and 
 from his decree the plaintiffs appeal on the grounds : — 
 
 1. That the fee conditional created by the will of the testator vested in 
 the son of Elias Lynch Horry, and in becoming so vested, all the subse- 
 quent limitations were void 
 
 2. That a fee cannot be limited after a fee, to take effect on an indefi- 
 nite failure of issue. 
 
 3. That on the death, in July, 1797, of the son of Elias Lynch Horry, 
 the possibility of reverter of the fee conditional vested in the said Elias 
 Lynch Horry, and the plaintiff, Mrs. Deas, as the sole heirs at law of the 
 testator, Elias Horry, subject to the estate of the tenant for life, Elias 
 Lynch Horry. 
 
 4. That on the death of Elias Lynch Horry, the plaintiff, Mrs, Deas, 
 became entitled to the possession of one moiety of the said plantation, 
 and the defendants to the other moiety. 
 
 5. That the plaintiffs are entitled to a moiety of the rents and profits 
 from the death of Elias Lynch Horry. 
 
 "^Petigru and King, for the appellants, cited and commented on r+oic 
 the following authorities : Archer's case, 1 Co. 63 ; Fearne on Rem. L 
 314, 514, n. 1, lb. 517 ; Adams v. Chaplin, 1 Hill's Ch. 265 ; 3 T. R. 489 ; 
 4 lb. 39 ; 2 Bail. 248 ; 3 Cruise, 461, tit. 29, Ch. 4, s. 2 ; Fearne, 548 ; 
 1 Russ. & Milne, 117 ; 8 Wheat 77 ; 1 Dom. 411 ; 4 Kent's Com. 258-9, 
 3 Ed. ; Fearne, 371-2; 1 Cruise, 19; 4 P. W. 372; Co. Lit. 426.
 
 192 SOUTH CAROLINA EQUITY REPORTS. [*246 
 
 R. B. Smith and Dunkin, contra, cited the following : Bract. 2 book, 
 sect 6; Fearne, 383, 354; 2 Sannd. 38U; 2 Bl. Com. 110; Plow. 241; 
 2 Prest. 301 ; 1 Ves. Ill ; 1 Hill's Ch. 273, 298; 1 Co. Lit. 219, 255 : 
 2 Atk. 282; Fearne, 378; 1 Prest. 75; 4 Kent's Cora 498; 4 Com. 
 Dig. 248, tit. Est K.; 8 East, 568 ; 1 Taunt. 585-6, 604 ; 2 Prest. 204; 
 3T. R. 88; 2 Bur. 1131; 1 W. Black. Rep. 251; 2 Eq. Rep. Ill, 
 112 ; 2 Bos. & Pul. 665 ; Cruise, tit. 29, sect. 16. 
 
 Harper, J. There would be no question respecting this will in 
 England. It would have given an estate for life to Elias Lynch Horry, 
 the father, with remainder in tail to his first and other sons, and in de- 
 fault of sons, to his daughters, successively, in the order of birth, leaving 
 the reversion in the testator's right heirs On the birth of the son, the 
 remainder in tail would have vested in him, and on his death, in 1797, 
 would have vested in interest in the eldest daughter of Elias Xynch 
 Horry, the elder, and on his death, in 1831, would have vested in posses- 
 sion, leaving the reversion still in the right heirs of the testator. 
 
 In like manner with us, there is no doubt but that Elias Lynch Horry, 
 the father, took an estate for life, and that on the birth of the son, a fee 
 conditional in the land vested in him. The first question is as to the 
 validity of any remainder limited after the first devise of the fee con- 
 ditional. In the case of Mazyck v. Yanderhorst, decided by this Court, 
 it was determined that no remainder could be limited after a fee con- 
 ditional. The same thing was determined by me, as Chancellor, upon 
 full consideration in the case of Bailey v. Seabrook, on the clear prepon- 
 derance of the more modern authorities, notwithstanding the authorities 
 of Bracton and Fleta, showing the existence of a different rule in their 
 times. The same point was again determined by me, in the case of 
 Chaplin v. Adams, 1 Hill's Ch. R. 265, which determination was affirmed 
 by this Court. 
 
 *2471 *^^ ^^ ^^^^ ^^^ ^^^ ^^^ ^^^® °^ Bailey v. Seabrook, I threw out 
 ^ the suggestion, on the authority of the quotations from Bracton 
 and Fleta, that before the statute de donis, there might have been a 
 limitation of the fee conditional to several in succession, each taking the 
 same qualified estate without having relation to the ultimate possibility 
 of reverter ; a sort of substitution not involving the power to limit the 
 fee absolue ; but, as said in that case, this is speculation too uncertain to 
 found a conclusion upon. The passages referred to, import that the 
 ultimate possibility or fee absolute may be limited." The whole current 
 of English authorities is that no remainder can be limited after a grant 
 of the fee simple conditional ; and the reasoning of the cases illustrates 
 this, because by the grant the first taker has the whole estate, so that 
 there is nothing left in the grantor to be the subject of a further grant; 
 and the further reason assigned in William and Berkley, Plowd. 235, 
 239, and other authorities, that before the statute, no formedon in 
 remainder lay, so that such a remainder man would have been without 
 remedy. This has certainly been the law of England since the time of 
 Plowden — and should we be authorized to depart from it on our con- 
 struction of the older authorities ? 
 
 AH remainders, then, after the devise to the first son of Elias Lynch 
 Horry were void; and on his death in 1797, his estate was determined
 
 *0 1-7 
 
 247] CHARLESTON, MARCH, 1835. , 193 
 
 and the fee reverted to and vested in the right heirs of the testator, Eiias 
 Horry. Who were those right heirs ? At the death of the testator, 
 before the passing of the Act of 1191, abolishing the riglit of primogeni- 
 ture, his son, Elias Lynch Horry, was his heir at law ; but at the death of 
 his son in 1797, the father, Elias Lynch Horry, together with his sister, 
 the plaintiff, Mrs. Deas, according to the provisions of that act, answered 
 the description of the testator's heirs at law. The point was considered 
 by me in Adams v. Chaplin, in which case also a fee conditional was 
 devised by a testator who died before the Act of 1791, and the estate 
 determined after the act. I refer to that case for the rule of the English 
 law — " That where a person entitled to an estate in remainder or rever- 
 sion expectant on a freehold estate, dies during the continuance of the 
 particular estate, the remainder or reversion does not descend to his heir, 
 loecause he never had a seizin to render him the stock or root of an in- 
 heritance, but it will descend to the person who is heir to the first pur- 
 chaser of such remainder or reversion, at the time when it comes into 
 *possession" — and for the reasons which induced me — supposing r^^^.r. 
 the rule to be different with respect to a remainder or reversion L ^ 
 under our statute of distributions, yet to conclude that with respect to a 
 fee conditional, the estate must go to the person who can make himself 
 heir to the grantor of the fee conditional, when that estate determines. 
 It was argued that on the death of Elias Horry, the right of reverter 
 descended on his son, Elias Lynch Horry, and it seemed to be thought 
 that this right could not be divested by the act of legislature. But why 
 not ? It belongs to the legislature to direct the course of descent, and 
 declare who shall be heir. It is true that the right of reverter descended 
 on Elias Lynch Horry in this sense, that if the fee conditional had deter- 
 mined at any time after the death of his father, and before the Act of 
 1791, he would have been the person then entitled to the benefit of it. 
 But that right he could not have transmitted to his heir, if the Act of 
 1791 had never been passed. Such a right, according to the views 
 before expressed, is not regarded as proper'ty, it is a mere possibility, 
 analogous in some degree to an heir apparent's right of succession. 
 
 Besides, as was justly observed in argument, if the act of the legislature 
 is not to have effect, it must be on the ground that it is opposed to those 
 provisions of the constitution, which are intended for the protection of 
 private property. There is no other restraint than the constitution on 
 the legislature. But the constitution itself provides that the right of 
 primogeniture shall be abolished, and in passing the Act of 1791, the 
 legislature was only carrying the direction of the constitution into effect. 
 
 It was further argued that the right of reverter having descended on 
 Elias Lynch Horry, the father, passed under the residuary clau.se of his 
 will to his daughter. But this is a plain misconception. At the time of 
 his death there was no possibility of reverter. The fee had long before 
 vested in himself and his sister, Mrs. Deas, and he could not divest her 
 interest by his will. But I do not hesitate to express my opinion that 
 such a possibility of reverter is not devisable. An authority relied on 
 was the note to Kent's Com. vol. 4, p. 498, n. d. " Mr. Preston doubts 
 whether a mere possibility of reverter be devisable, but there seems to be 
 no reason for doubt since the decision in Jones v. Roe." But with 
 proper deference to that distinguished jurist, it does not appear to me
 
 194 SOUTH CAROLINA EQUITY REPORTS. [*248 
 
 -, that the case of Jones v. Roe (3 T. R. 88) concludes this *raatter. 
 "^ -• What is determined in that case is, that an executor devise is 
 devisable ; that is, the interest which the devisee takes before the event 
 on which it depends is determined. It is said that a possibility coupled 
 with an interest is devisable. But I am persuaded that the right of 
 reverter is not regarded as such a possibility. In the case of Goodright 
 V. Forrester, 8 East, 552, subsequent to Jones v. Roe, it was determined 
 that the right of entry could not be devised under the Stat. Wills, 21 H. 
 8, C. 1, which provides that persons "having manors, lands, tenements 
 or hereditaments,^' may dispose of them by will. It was argued on the 
 terras of our statute of 1789, which authorizes any person having "right 
 or title to any lands, tenements or hereditaments whatever," to dispose 
 of them, that the possibility of reverter is an hereditament, being des- 
 cendible, and is therefore devisable. The possibility of reverter is des- 
 cendible in the sense I have before pointed out ; and exactly in th'e same 
 sense the right of entry is descendible, and there seems to be no substan- 
 tial difference in the words of the two statutes. But what is a right of 
 entry ? The party has been divested of the estate by disseisin, but has 
 the perfect present right of re-investing himself with the title by entry. 
 Mr. Preston, in his elaborate argument of the case of Goodright v- For- 
 rester, in the Exchequer Chamber, 1 Taunt. 603, (where it was finally 
 det'.rmined on different grounds, without impugning the decision of the 
 Court of King's Bench on the point,) admits the authority of Jones v. 
 Roe, but argues that, in point of law, though it is otherwise in point of 
 fact, a right or title of entry is no interest ; at least no interest for the 
 purpose of disposition, though it is an interest which may be released, it 
 is merely a naked loossibility. But he who has the possibility of reverter, 
 has no present interest, either in law or in fact, and the presumption is, 
 that he will never have any, the whole estate, according to the cases, is in 
 the tenant in fee conditional. Is this less a naked j^ossibilityf — The 
 only decree which can be made at present is, that the decree of the 
 Chancellor be reversed, and the demurrer overruled, and it is Ordered 
 and decreed accordingly. 
 
 Johnson, J. and O'Neall, J. concurred. 
 
 *250i *'^°^^ Klinck, Administrator of Michael Keckley, v. Edward 
 -* Keckley, Executor of George Keckley. 
 
 A renunciation of dower on a mortgage cannot operate beyond the estate conveyed 
 so as to have the effect of a perpetual bar — it can only postpone the claim of 
 dower to the satisfaction of the lien, and the land stands as a security for the 
 debts secured by the mortgage unincumbered by the wife's rights; the other 
 creditors have no right to the aid of the wife's dower for the payment of their 
 debts: therefore where the wife had renounced her dower on mortgages by her 
 husband, and after his death on marshaling his assets in the Court of Equity 
 the mortgage debts were paid out of the personalty, it was held that the widow 
 was entitled to her dower, and a sum of money assigned in lieu thereof, was 
 ordered to be paid to her, out of the land which was ordered to be sold for the 
 payment of debts. [■*25'2] 
 
 The common law prerogative of the King to be paid in preference to all other
 
 *250] CHARLESTON, MARCH, 1835. 195 
 
 creditors, does not apply to the State. The right of the State depends in this 
 respect altogether on the statute law. The Act of 1789, prescribing the order in 
 which the debts of a deceased person shall be paid, gives the preference to the 
 State only where the intestate is indebted to the State and a citizen in erjual 
 degree; and therefore a junior judgment in favor of Coniniissioners of the poor, 
 (conceding it to be a debt due to the public,) is not entitled to be paid in pre- 
 ference to senior judgments of other creditors. [*2oG] 
 
 This case came up at Charleston, in April, 1834, before Chancellor 
 Johnson, on the report of the Commissioner, made in pursuance of 
 several orders calling in the creditors of George Keckley, and requiring 
 the Commissioner to receive further demands against the estate, in order 
 that the assets might be marshaled. 
 
 Among other demands, the Commissioners of the poor on Charleston 
 neck presented a judgment against George Keckley, in the name of John 
 Robinson, for the nse of the said Commissioners, founded on a due-bill: 
 and it was proved that Keckley had acted as chairman of the board of 
 Commissioners, received the poor tax during his term of office, and on 
 its expiration, accounted with Mr. Robinson, his successor, and gave this 
 due bill for a balance in his hands. It was insisted that this was a debt 
 due to the public, and therefore entitled to a preference. 
 
 The widow of George Keckley, ))y virtue of an order of Court in 
 another case, claims to be paid out of the funds in this ease, a sum 
 assessed to her for dower. The facts in relation to this claim are fully 
 stated in the opinion of the Appeal Court. 
 
 The Chancellor held, that the demand of the Commissioners of the 
 poor, could rank only as a judgment debt; and decreed the amount 
 claimed by the widow for dower to be paid, on the ground that the 
 previous decretal order was binding on him, and could only be set aside 
 by the Appeal Court. 
 
 From this decree the Commissioners of the poor appealed, on the 
 grounds : — 
 
 1. That the Chancellor erred in decreeing that their claim should only 
 rank as a judgment debt, whereas it is submitted that it should rank as a 
 debt due to the public, and be paid in preference to all other claims 
 reported on. 
 
 2. That the Chancellor erred in allowing the claim for dower, as it 
 was illegal and excessive ; and the decree for the same was irregularly 
 obtained and not obligatory on the creditors. 
 
 M'Crady, for the appcUants, referred to 1 Faust, 76 ; 2 Faust, 15 ; A. 
 A. 1813, p. 13,14; A A. 1824 p. 66,67; and cited, State u. Williams, 
 1 N. & M'C. 26-28; State v. Simpson, 1 Bail. 3t8. 
 
 *0'jS'eall, J, The first question made in this case, is as to r*25i 
 the payment to the widow of George Keckley, deceased, of the '- 
 amount assessed in her favor, for dower, in another case in this Court, and 
 dkected to be paid out of the funds. The facts out of which the ques- 
 tion arises seems to be, that George Keckley mortgaged his land to the 
 Union Bank, and the Bank of the State ; that his wife renounced her 
 dower on these mortgages. Mr. Keckley, at his death, was found to be 
 insolvent. On a bill against his executor, by his widow, a sum of money 
 in lieu of dower, was assessed by the Commissioners under the writ of
 
 196 SOUTH CAROLINA EQUITY REPORTS. [*251 
 
 admeasurement of dower ; their return was confirmed, and the sum 
 assigned was ordered to be paid out of the proceeds of the sale of Mr. 
 Keckley's estate, ordered to be sold in this case, in which it had been pre- 
 viously ordered to advertise for creditors to come in, and that "the Com- 
 missioner shall thereupon marshal the assets of the estate, after deducting 
 the amount which may be decreed to the widow as dower, setting forth 
 the assets of the estate, and the amount and order in which the debts are 
 payable." Under this order the creditors have come in, and the Com- 
 missioner reports that he has paid, out of the sales, the mortgages, and 
 has made a partial payment to the widow, on account of her dower. The 
 personal estate was more than enough to pay the debts prior to the mortga- 
 ges and the mortgagees. The funds, however, will not be sufficient to pay 
 the dower and all the intestate debts. The widow is no party to this bill. 
 She is, however, entitled, under the former decree, to receive her dower 
 out of the assets in this case, and it might be difficult for the creditors in 
 this case to entitle themselves to make the objection in this informal way 
 to the widow's claim of dower ; but as the objection was at last rested on 
 the impropriety of such an allowance being made to the widow, and the 
 objections to the irregularities (if there were any) in the proceedings for 
 the admeasurement of her dower, were not insisted on, and as a majority 
 of the Court are very clearly of opinion that she is entitled to dower, we 
 have concluded to consider the point, as if it was regularly made. 
 
 We are not advised of the form or manner in which the dower was 
 renounced on the mortgages, but as no objection was made on account of 
 any insufficiency in that respect, it is taken for granted that every thing 
 was regular. 
 
 "What is the effect of this renunciation of dower ? I think it is 
 *9'S91 *c^^''^^" that it cannot operate beyond the estate conveyed. It can- 
 ""-^ not have the effect of a perpetual and absolute bar. For the 
 mortgage is, as against the mortgagor, only a lien. The renunciation 
 can only have the effect to postpone the claim of dower to the satisfaction 
 of that lien. The land then stands as a security for the payment of the 
 debts secured by the mortgages, unincumbered by the wife's rights. If 
 the mortgages had been paid by the husband in his lifetime, the wife's 
 right of dower would have been restored. Does the fact of their pay- 
 ment after his death, in a regular course of administration, restore the 
 wife's right to dower ? The 36th section of the Act of 1789, P. L 494, 
 directs that the debts due by any testator, or intestate, shall be paid, viz : 
 1st. Funeral and other expenses of the last sickness, and of administra- 
 tion. 2d. Debts due to the public. 3d. Judgments, mortgages, and 
 executions, the oldest first, &c. Under this provision, the mortgagees 
 were entitled, in their order, to be paid out of the personal estate ; and if 
 they had attempted to collect their debts by a sale of the real estate under 
 a decree of foreclosure, I think the widow would have been entitled to 
 the application of the personal assets, in exoneration of the land ; for the 
 other creditors have no right, either in law or equity, to the aid of her 
 dower for the payment of their debts. According to the common law, 
 dower is preferred to purchasers or creditors. The latter are not preju- 
 diced by allowing the dower : it neither increases nor diminishes the fund 
 out of whicii they had a right to expect payment — the intestate^s real and 
 personal estate; for the widow's dower is no part thereof. But I have
 
 *i52] CHARLESTON, MARCH, 1835. 197 
 
 said that tbe renunciation of dower cannot have efifect beyond the estate 
 conveyed. When that ceases, the renunciation must also cease. Tlie 
 deed of a feme covert, executed under and agreeable to law, onglit to l)e 
 strictly construed, so as not to deprive her of any right beyond that 
 actually conveyed. Here the legal effect of her renunciation must be 
 controlled by the terms of the deed on which it is made, to which it has 
 reference, and of which it is a part. That sets apart the land to secure 
 the payment of a debt : the dower is forever renounced if the land is sold 
 under the mortgage to pay that debt. This makes the renunciation in 
 the nature of a collateral mortgage. If the husband's mortgage is not 
 foreclosed, the wife is most clearly not barred of her dower ; she could 
 demand it of any one except the mortgagee ; and no one but the mort- 
 gagee could plead *her renunciation in bar to her demand. When r^^Ko 
 the mortgage is paid oft" by the assets of the husband, none of his ^ 
 creditors have any equity to set it up against the wife, for she has gener- 
 ally a prior equity to be allowed her dower ; and in this case there is 
 nothing to take it out of the general rule ; for the legal effect of her 
 renunciation is removed ; and when that is done, she stands as if she had 
 never renounced her dower. For unless she had received some beneficial 
 interest by the mortgage, equity could not undertake to control the law. 
 On examining such of the cases as I have been able to refer to, the prin- 
 ciples which I have stated are fully sustained. 
 
 In Dolin v. Coltman, 1 Vern. 294, the wife joined her husband in a 
 mortgage, and levied a fine to bar her dower ; and in consideration thereof 
 the husband agreed that she should have the redemption of the mortgage : 
 he twice subsequently mortgaged the same estate. It was held that this 
 agreement to redeem was fraudulent against the junior mortgages, but 
 that the wife should have her dower, as she had renounced in the confi- 
 dence of having the equity of redemption. This case shows that the 
 renunciation of dower by the wife is not to have effect beyond her intent, 
 as manifested by the consideration of the act done. Apply that principle 
 to the case before us : what was the consideration of her renunciation on 
 the mortgages ? To secure the ultimate payment of the debts. It was 
 the same as if she had said to the mortgagees, if you cannot be paid your 
 debts but by a sale of the land, I will not claim dower out of it. If they 
 could be otherwise paid, from the analogy of this last case, she could not 
 be barred from her dower ; for then the consideration of the renunciation 
 ceased ; and to give it an effect beyond, would be a fraud on her. In 
 Titus V. Neilson, 5 J. Ch. Rep. 452, the husband and wife legally exe- 
 cuted a mortgage of the land, and subsequently the husband alone exe- 
 cuted another mortgage. On a bill filed by the first mortgagee against 
 the husband and wife and the second mortgagee, for a foreclosure of his 
 mortgage, pending the proceedings the husband died, the land was decreed 
 to be sold, and after payment of the first mortgage, the question arose 
 whether the second mortgagee should be entitled to the entire residue, or 
 whether the widow was entitled to one-third thereof during her life, as 
 antl for her dower. Chancellor Kent held that the widow was entitled to 
 her dower ; and in delivering his judgment (at 451) he remarks, " when 
 *the wife joined in the first mortgage, she only paiied with her p.^^^ 
 right of dower to the extent of that mortgage debt, and she would •- 
 have been entitled to have redeemed the" mortgage upon her husband's 
 Vol. I.— 36
 
 198 SOUTH CAROLINA EQUITY REPORTS. [*254 
 
 death, for tlie sake of her dower, and to reinstate herseJf in all her 
 rights. '^ If the wife, upon the death of her husband, may redeem the 
 raortarage, and thus reinstate herself in all her rights, it follows (I think) 
 that she has the right to have the mortgages paid out of the personal 
 estate. For if she had redeemed, she would, against the heir, have been 
 entitled to retain the land until she had her dower assigned her, and was 
 ])aid the mortgage debt, deducting her proportion as dowress. — 1 Eq. Ca. 
 Ab. Tit. ; Dower and Joint. B. 6 ; 5 J. Ch. Rep. 491. Her contribu- 
 tion to the heir is one-third of the annual interest of the mortgage debt 
 during life ; thus showing that the mortgage debt, even in her hands, 
 remains a charge upon the estate, and that her dower is preferred to all 
 other claims where she has not renounced ; or, if she has renounced con- 
 ditionally, and the condition can be prevented from attaching. If the 
 widow, in the case before us, had redeemed the land by paying off the 
 mortgages, she would have been entitled to her dower, and also io have 
 the mortgages paid to her. She would be also entitled to have that pay- 
 ment made out of the personal estate ; for that is the primary fund for 
 the payment of the debts, and as a mortgage creditor, she could only, in 
 marshaling assets, have been compelled to exhaust the balance of the real 
 estate after satisfying her dower, before resorting to the personal estate. 
 That would be unnecessary to be done ; for if she was paid out of the 
 personal estate, the other creditors would get the balance of the real 
 estate after satisfying the dower, and thus she could not be asked to go 
 upon the real estate to relieve the personal, as no benefit would result 
 from such a proceeding. The effect of allowing her renunciation to be 
 taken advantage of by other creditors, so as to exclude her from dower 
 altogether, would be to give them an equity to be paid out of her dower, 
 Tliis they have not. For, by her renunciation to the mortgagees, in the 
 language of Chancellor Kent, " She only parted with the right of dower 
 to the extent of the mortgage debts." Allow it to operate to bar her 
 dower when it is not necessary that it should have such an effect, for 
 the satisfaction of the mortgages, and it will amount to an absolute and 
 unconditional renunciation, which never was intended, and which is there- 
 ^.-jrr-i fore contrary to both law and *equity. In Hildreth v. Jones, 13 
 -' Mass. Reports, 525, the wife joined her husband in a mortgage, 
 ard after his death, in an application to the Judge of Probate, she stated 
 that she was barred of her dower by the said mortgage deed, and prayed 
 an allowance out of the personal estate, which was granted. The ad- 
 ministrator afterwards paid the mortgage — it was held that she was en- 
 titled to her dower. 
 
 In Barker v. Parker, 17 Mass. Rep. 564, the land was mortgaged by 
 husband and wife to Gerry, who assigned to Jeffries, by whom the land 
 was recovered in an action, and he entered into the possession under a 
 "judgment of possession," and so continued for some time, until John 
 Henderson, who had been tenant under Barker, the original mortgagor, 
 paid off the mortgage to Jeffries, who released to Henderson his riiiht. 
 Barker's right to redeem was sold under execution, and purchased by 
 Mackay, who conveyed to others, by whom it was conveyed to the 
 defendants. It was held that the demandant was entitled to dower. Mr. 
 Justice Putnam remarked, in delivering his judgment, "If no mortgage 
 had been given, it would be agreed on all hands that the widow should
 
 ♦255] CHARLESTON, MARCH, 1835. 199 
 
 have dower. But the mortjyage having been paid is to he considered as 
 never having existed." This dictum presents, I think, the true view, 
 that the mortgage being paid, is to be considered, so far as the wife's 
 dower is concerned, as never having existed, and hence no jiretence can 
 be made by which it can be set up as a bar to the wife's right of dower. 
 Both the cases cited show that payment is an absohite extinction of the 
 mortgage, and the first that not even allowance out of the personal estate 
 for maintenance to the wife on the supposition that she was barred, could 
 keep alive and in operation the wife's renunciation of dower after the 
 mortgage had been paid off. 
 
 In Pixley v. Bennet, 11 Mass. Repts. 298, the demandant, widow of 
 Charles Pixley, demanded her dower of lands belonging to the husband 
 during coverture : the tenants pleaded that she had released her dower: 
 the demandant craved oyer of the writ, from which it appeared that she 
 had released to Truze and Edwards. She therefore demurred to the 
 plea, and her demurrer was sustained. From this decision it is apparent 
 that a renunciation of dower cannot be taken advantage of by any one 
 except the parties or his privies, to whom it is made. The creditors 
 could not, therefore, set up the renunciations of dower to mortgagees, as 
 a *bar to the wife's claim of dower out of the land mortgaged, r^gcg 
 It was said that the decree allowing the widow's dower did not '- 
 make it a charge upon the land specifically, but upon the estate generally ; 
 and Stock and Parker, 2 McC. Ch. Rep. 376, was cited to show that 
 this was incorrect ; and if it was, as is supposed by the objection, there is 
 no dovdjt from that case that it would be so. But the land is ordered to 
 be sold in this case, and out of its proceeds the. dower may be regarded 
 to be decreed to be paid ; and as it sold for a sura greatly beyond the 
 dower, and as no rights of creditors will be changed thereby, the Com- 
 missioner, in paying the dower, will not be in error in paying it out of 
 the funds generally. From this examination of the question, I am satis- 
 fied that the decree, allowing the widow dower of the preuiises mortgaged 
 was correct, and that the sum assessed in lieu of her dower must l)e paid 
 by the Commissioner out of the proceeds of the sale of the estate of 
 George Keckley, deceased, in this case. 
 
 2. Without undertaking to decide whether the debt due to the com- 
 missioners of the poor be a debt to the public, it will be sufficient to say 
 that, conceding it to be so, it is not entitled to the preference claimed. 
 According to the report of the Commissioner, and in the aspect in which 
 the claimant wishes it to be considered, this debt is on a due-bill for a 
 balance due by the deceased for poor tax received by him. The other 
 debts are due by mortgages or judgments. The case of the Commis- 
 sioners of Public Accounts v. Greenwood, 1 Eq. Rep. 450, (decided in 
 1795, and never questioned,) denied the general common law jirerogative 
 right of the King to be paid in preference to his subjects, to have any 
 application to the State. In the State v. Harris, 2 Bailey, 598, the same 
 position was ruled. So that the right of the State to be paid in pre- 
 ference to other creditors, depends now altogether on the statute law. 
 Under the Act of '89, the question is, what debts to the pul>lic are entitled 
 to be first paid. la the State v. Harris, I said that debts which are due 
 to the State as a " sovereign, and for the protection of l)oth the citizen 
 and property, are entitled to preference." This definition was intended
 
 200 SOUTH CAROLINA EQUITY REPORTS. [*256 
 
 to embrace the right of the State to be paid all taxes in preference to all 
 other debts. But perhaps the words used in the Act of 1789, ought to 
 have a little more extended meaning, and to be construed by the common 
 law. In the case of the Commissioners of Public Accounts v. Green- 
 *of;>7i ^^^^' ^^^^ Judge says, " But even if the common law prerogative 
 -■ *was retained, yet we are of opinion it cannot affect the defend- 
 ants in this case, because by the common law, the King was entitled to a 
 preference only when the debt was OJi record or sj?ecialty, in cases where 
 he and the subject stood in equal degree.^' That the words " debts due 
 to the public," must be construed to mean, that where the intestate is 
 indebted to the State, and some of the citizens in equal degree, that in 
 such case the State shall have the preference, is not only apparent from 
 a construction of the Act by the common law, but the same conclusion is 
 obtained by looking to the fact that any other construction would divest 
 liens existing in the lifetime of the debtor, by judgments, executions and 
 mortgages. 
 
 It appears that a judgment was obtained on the debt due to the Com- 
 missioners of the Poor, in the name of John Robinson ; if that can be 
 considered as judgment in favor of the State, (which I much doubt) it 
 cannot alter the case, the Act of '89 gives the oldest judgment the pre- 
 ference, and as this judgment is the youngest, it cannot be said to be in 
 equal degree with the older ones. It is a debt of the same class, but it 
 is not with the others equally entitled to payment. The case of Commis- 
 sioners of Public Accounts v. Greenwood, is, however, an authority upon 
 the point, and it is unnecessary to look beyond it. I am, therefore, satis- 
 fied that the Commissioners of the Poor are not entitled to the preference 
 claimed. 
 
 It is ordered and decreed that Chancellor Johnson's decree be affirmed. 
 
 Johnson, J., concurred. 
 
 Harper, J., I concur as the second point decided. > 
 
 Vernon & Co. v. The Executors of Peggy Africana Ehrich, and 
 Jacob R. Talk and Wife. 
 
 Lands in the hands of the heir or devisee, are liable to the debts of the deceased, 
 ■whether the executor has assets or not Under the stat. 3 & 4 W. & M. the heir 
 and devisee may be sued jointly, and the executor cannot be joined at law. 
 The heir or devisee, however, has an equity against the executor to be reimbursed 
 out of the personal assets: and when the creditor comes into equity to charge the 
 real estate, he must make the executor a party to prevent circuity of action, 
 thereby at once afibrding the heir or devisee relief; but where there is no executor 
 or administrator and no personal assets in the state, no such party can or need 
 be made. [*260] 
 
 The heir or devisee is not bound by a iudgment against the executor or adminis- 
 trator. [*261] ^ J o b 
 
 Quere? Can a bill against a devisee to charge the devised estate, be sustained 
 without making the heir-at-law a party? [*262] 
 
 The bill states that John M. Ehrich, in his life time, and the plaintiffs, 
 were jointly engaged in New York, in the shipment of hemp ; and that
 
 *2")7] CHARLESTON-, MARCH, 1835. 201 
 
 Ehrich died in 1822, having first executed his will, by which he devised 
 to the defendant, Mrs. Yalk, a house and lot *in Charleston, and r^oco 
 appointed his widow, Peg:2:y Africana, his executrix. That pro- >- " 
 ceeding:s were had in the Court of Chancery, in New York, on the ])art 
 of these plaintiffs, touching these shipments against Mrs. Elirich ; that 
 by her answers she admitted assets, and that in 1826, it was tiion or- 
 dered and decreed as follows : " The master having reported a balance 
 against the estate of the said John M. Ehrich, of §3528 93, and the said 
 Peggy A. p]hrich having, by her answer heretofore filed, admitted assets, 
 it is ordered, adjudged and decreed, that the report of the master lie 
 confirmed, and that the defendant, Peggy A. Ehrich, pay to the plain- 
 tiffs or their solicitors, the said sum of $3528 93, so reported to be due 
 to the said plaintiffs." That, thereupon, an execution was issued and 
 returned nulla bona. That Mrs. Ehrich died in December, 1832, having 
 by her will, appointed the defendants, E. Parmley, L. Catlin, and A. 
 Dey, of New York, her executors. That the ]iersonal estate of John M. 
 Ehrich is exhausted, and the house and lot in Charleston devised to Mrs. 
 Yalk, is the only resource to pay the decree. Prays an account for the 
 rents, and satisfaction of the decree, by the sale of this property — and 
 general relief 
 
 Defendants, Jacob R. Yalk and wife, demurred to so much of the said 
 bill as sets forth a decree obtained in the Court of Chancery, in the 
 State of New York, by the plaintiffs, against Peggy Africana Ehrich, 
 lately deceased, and seeks to have satisfaction thereof by the sale of the 
 house and lot devised by the said John M. Ehrich, as in the bill men- 
 tioned ; and for cause of demurrer say, that these defendants were nei- 
 ther party or privy to the said proceedings, nor is the said decree against 
 them or against the property so devised as aforesaid, but against Peggy 
 Africana Ehrich individually. 
 
 Defendants further demur to so much of the bill as states that certain 
 commercial transactions took place between the late John M. Ehrich, in 
 his lifetime and the plaintiffs, in which the said John was sup])osed to 
 have become indebted to the said plaintiffs, and seeks to recover the 
 amount of the same from the property in the possession of these defend- 
 ants ; and for cause of demurrer say, that by the plaintiffs' own showing, 
 the said John M. Ehrich is dead, and his executor or administrator is 
 not made a party to the said bill; — and for further cause of demurrer, 
 these defendants say the said Peggy Africana Ehrich, executrix of John 
 M. Ehrich, admitted that she had assets of the estate of her testator suf- 
 ficient *to satisfy his debts, and yet the plaintiffs do not show that r*.icg 
 they have pursued all proper means to procure payment of their '- 
 supposed debts, from the fund so originally and properly liable, before re- 
 sorting to the real estate of the said John M. Ehrich specially devised in 
 trust for. this defendant, Sarah Yalk 
 
 The Chancellor overruled the demurrer. 
 
 The defendants, Jacob R. Yalk and wife, appeal on the ground, that 
 the demurrer should have been sustained for the reasons therein stated. 
 
 Dunkin, for the appellants, contended that the decree in New York is 
 against the executrix personally, who became liable by admitting assets 
 to be in her hands, and the plaintiffs have ample remedy by enforcing
 
 202 SOUTH CAROLINA EQUITY REPORTS. [*259 
 
 that decree against her estate. That the property here never was under 
 her control, and that the defendants, Valk and wife, are in no wise bound 
 by the New York decree to which they were not parties. That their 
 property cannot be made liable until the executrix has been pursued to 
 iTisolvency — and that there is no party now before the Court representing 
 Ehrich's estate ; for the other defendants, executors in New York, are not 
 recognized as such here. Cited 6 John. Ch. Rep. 373; 8 Cranch, 9; 8 
 Wheat. 646, 667, 671; 3 John. Ch. Rep. 58; 1 M'C. Ch. 417. 
 
 Petigru, contra. 
 
 Harper, J. The causes of demurrer set forth are, that no executor 
 or administrator of John M. Ehrich is made a party to the bill ; that the 
 ex( cutrix, Peggy Africana Ehrich, admitted assets of the testator, and 
 plaintiffs do not show that they have pursued all proper means to obtain 
 payment of their debt from those personal assets. To so much of the 
 l>ill as sets forth the decree in New York, the demurrer states that the 
 defendants were neither parties nor privies to that decree. 
 
 By the common law, a bond creditor might bring his action against the 
 heir at law in respect of real assets descended, and neither was bound to 
 join nor could join the executor in the action. 
 
 And it was immaterial whether the executor had, or had not assets, the 
 heir could not ])lead that the executor had assets Cora. Dig Tit. Pleader 
 E. 2, But lands were not liable in the hands of a devisee. By the Stat. 
 *2601 3 & 4 W. & M. c. 14, (P. L ) 87, called *"the statute of fraudu- 
 -' lent devises," an action was allowed against the heir and devisee 
 jointly, on bonds and specialties. This action was of course subject to 
 the same rules as that against the heir alone. The executor was not to 
 be joined, and it was immaterial whether the executor had assets. Then 
 by the Stat. 5 Geo. 2, c. 7, lands were made liable for the satisfaction of 
 all debts, by simple contract as well as by specialty, "in like manner as 
 real estates are by the law of England liable to the satisfaction of debts 
 due by bond or other specialty." If this were an action at law then, 
 against the heir and devisee, it would be no objection that the executrix 
 was not joined, or that she had assets, or that no remedy had been pur- 
 sued against her; but the heir or devisee had au equity, if there were 
 assets sufficient to satisfy the debt in the hands of the executor, to be 
 reimbursed out of those assets. When therefore it was necessary for the 
 creditor to come into Equity, (and suits against the heir or devisee seera 
 to have been more common in equity than at law,) it was requisite that 
 the executor should be made a party; not on the principle contended for 
 in this case, that the executor is the only legal representative of the tes- 
 tator and the only proper person to defend an action which shall affect 
 his estate, but on the familiar equity rule of preventing circuity of action 
 by making all persons interested parties, so that complete justice may be 
 done at once. Now the Court of Equity in all cases delights to do com- 
 plete justice, and not by halves, as first to decree the heir to perform this 
 covenant, and then to put the heir upon another bill against the executor 
 to reimburse himself out of the personal assets, which, for aught that 
 appears to the contrary, may be more than sufficient to answer the cove- 
 nant ; and where the executor and heir are both brought before the Court,
 
 *260] CHARLESTON, MARCH, 1835. 203 
 
 complete justice may be clone by decreeing the executor to perform tliis 
 covenant so far as the personal assets will extend, the rest to he made 
 good by the heir out of the real assets." Knight v. Knight, 3 P. Wms, 
 333. The question in that case was, whether the executor could be made 
 a party. If it were shown by the bill, however, that there were no assets 
 in the hands of the executor, or that he had been called to account, and 
 the remedy against him was exhausted, the reason would cease, and it 
 would be unnecessary to make him a party. 
 
 If there were an executor or administrator in this State having assets, 
 it would be necessary to make him a party, not on the *ground r^^.jn-i 
 that he is the only legal representative to defend the estate, but '- 
 on the equity principle mentioned. The bill, however, shows that there 
 is no executor or administrator, and no personal assets in the State : of 
 course no such party could be made. It shows that all the personal assets 
 went into the hands of the executrix, Peggy Africana Ehrich, and her 
 executors are made parties. If there had never been any proceeding what- 
 ever against the executrix or her representatives, here are all the parties 
 that could be made. There is no analogy to our decided cases that have 
 been relied on, as in Trescott v. Trescott, 1 M'C. Ch. 417, that before a 
 legacy or distributive share can be pursued by creditors in the hands of 
 the legatee or distributee, the executor must be sued to insolvency ; such 
 creditors never had any direct right of action against the legatee or dis- 
 tributee, and their entire equity as against them is founded on the execu- 
 tor's insolvency. Notwithstanding our decisions that lands in the hands 
 of the heir may be sold by an execution upon a judgment against the 
 executor or administrator, (decisions which, however much we may regret 
 them, have yet obtained too long, and too many rights have been vested 
 under them to allow us to interfere with them,) yet I suppose an action 
 at law might be sustained against the heir alone. There is nothing iu 
 these decisions to forbid such an action. In such action, the executor 
 neither would nor could be joined, and it would be immaterial whether 
 there were an executor or administrator in the State or not. Coming 
 into equity, the creditor must conform to the rules of equity and make all 
 necessary parties. This, it appears to me, has been done. It would be 
 mere mockery that a formal administration should be taken out here 
 where there are no assets, in order that such formal administrator might 
 be made a party. 
 
 I think the ground of the demurrer is just to that part of the ))ill whieli 
 states the decree obtained in New York, and prays the enforcement of it. 
 The heir is not bound by a judgment against the executor or adminis- 
 trator, and defendants were not parties or privies to that decree. When 
 the heir is sued he is to defend, and the cause of action must be estab- 
 lished against him. 
 
 The bill however states sufficiently the original cause of action, and in 
 addition to the prayer for the enforcement of the decree, contains a prayer 
 for general relief. When a proper case is made, though the specilic 
 relief prayed for cannot be granted, yet, if there be a prayer for general 
 relief, the proper relief will be afforded. 
 
 *When a bill is against the heir and executor, the decree is, that r*.>/>c> 
 the executor account for the i)ersonal assets, and that they shall L ^ -^ 
 be applied so far as they will go, and that the heir shall make good the
 
 204 SOUTH CAROLINA EQUITY REPORTS. [*262 
 
 deficiency. The executors of the executrix are out of the jurisdiction, 
 and a decree aG:ainst them would probably be ineffectual. I do not say 
 that the plaintiffs may not be required to institute further proceedings in 
 New York, calling those executors to account, before a decree will be 
 made in their favor against the defendants ; but this has nothing to do 
 with the questions made on the demurrer, and it would be premature to 
 consider that matter now. 
 
 By the Stat. 3 & 4 W. & M. the action is allowed against the heir and 
 devisee jointly. The heir at law of John M. Ehrich is not a party to 
 this bill, and a question may arise whether the bill can be sustained 
 without making him a party. This, however, is not a ground of de- 
 murrer, nor is the question made. The demurrer is sustained to that 
 part of the bill which states the decree obtained in New York, and prays 
 the enforcement of it. In other words it is overruled, and the Chan- 
 cellor's decree affirmed. 
 
 Johnson, J., and O'Neall, J., concurred. 
 
 Bank of South Carolina vs. James Adger. 
 
 A surety to a custom house bond having paid it, is not entitled, under the Acts of 
 Congress of '97 and '99, to be subrogated to the rights of the United States as 
 against liis co-surety, so as to give his demand for contribution a preference over 
 other creditors; nor on the general principles of equity can he claim to stand in 
 the place of the United States as against the co-surety. [*2G6] 
 
 Joint judgment against principal and sureties paid by one of the sureties, will not 
 be set up for contribution against the co-surety. [*267] 
 
 On the 12th of September, 1825, Samuel H. Lothrop made a general 
 assignment to William Price, of all his estate, for the payment of certain 
 preferred creditors in the first place, and the surplus to his other creditors. 
 William Price died intestate, and administration of his estate was com- 
 mitted to the defendant, James Adger. This bill was filed for an account 
 of the administration of his estate, and an order was made directing Mr. 
 Gray, the Commissioner, to take an account of the estate of William 
 Price, and also of the estate of Samuel H. Lothrop, assigned to hira ; 
 and of the assets that have come to the hands of the defendant; and also 
 *263l ^^ inquire and take an account of the debts due by *the said 
 -^ William Price, at the time of his death, in his own right, and as 
 assignee. The accounts have been taken, and it is found that Price is 
 insolvent, but has left assets to pay his bond creditors ; and that he is 
 indebted to the assigned estate of Lothrop, in a large sum on bond. 
 The preferred creditors of Lothrop claim to be paid according to his 
 assignment, but a claim is interposed by John C. Miller and James A. 
 Miller, assignees of Duke Goodman, on the following grounds : — 
 
 Duke Goodman and Samuel H. Lothrop were the sureties of Joseph 
 T. Weyman, on two custom house bonds; one bond dated 2d May, 1825, 
 payable 2d February, 1826, conditioned for $1332 15, upon which bond 
 judgment was entered np against Weyman, Lothrop, and Goodman on 
 22d March, 1826; and another bond dated 29th April, 1825, payable 
 29lh April, 1826, conditioned for $4534 50, on which last mentioned
 
 *263J CHARLESTON, MARCH, 1835. 205 
 
 bond jnrlgment was had against the principal and botli tlic surelios, on 
 the 6th July, 1826. 
 
 In September, 1826, the assignees of Goodman paid the amount of 
 these bonds to the District Attorney, who assigned to them the judgments 
 against Weyman, the principal ; and they now claim contribution from 
 the assets of Lothrop for one moiety. The assets of Weyman are ex- 
 hausted. On this state of facts, His Honor, Chancellor Joliiistou, 
 decreed the funds of Lothrop to be paid over to his preferred creditors, 
 and the assignees of Groodman appeal : — 
 
 1. Because the estates of Lothrop and Goodman were equally liouiid 
 to pay these bonds ; and the United States had a priority to all other 
 creditors. And the accidental circumstance that payment had been 
 made by Goodman's assignees before the funds of Lothrop were got 
 in, should not be allowed to favor one set of creditors, or disappoint 
 another. 
 
 2. Because Goodman's assignees, by paying off the debts, are entitled 
 to be substituted to the I'ights of the United States, and to set uji the 
 judgments against Lothrop for the moiety which his estate ought to have 
 paid. 
 
 Petigy-u, for the appellants. LTpon the general principle of marshal- 
 ing assets, the assignees of Goodman have a right to payment of a moiety 
 of the debts paid for Weyman. 
 
 *By the 5th section of the Act of Congress of 1707, (1 Story's 
 
 [*264 
 
 Laws U. S. 465,) when any person indebted to the United States 
 becomes insolvent, or makes a voluntary assignment to pay his debts, the 
 United States shall have priority in the payment of debts : and the 65th 
 section of the Act of Congress of 1799 (1 Story's Laws U. S. 630) 
 declares, that on all bonds for duties, when the estate in the hands of 
 executors, administrators or assignees, shall be insufficient to pay all the 
 debts, the debt due the United States shall be first satisfied ; and if the 
 principal debtor be insolvent, and the sureties pay the bond, " then such 
 surety or sureties shall have and enjoy the like priority and preference." 
 By the insolvency and consequent assignment of Lothrop, the United 
 States, under the Acts of Congress, were entitled to priority over all his 
 other creditors — a right existing in respect to all the obligors in the 
 nature of a joint mortgage. By the payment of the judgments, the rights 
 of Goodman could not be affected — it was what the law would have com- 
 pelled. Nor can the United States' Attorney, by coercing ]niyment 
 from Goodman's assets, defeat any of his rights. It has been shown that 
 the United States had priority of all Lothrop's creditors. On principles 
 of general equity, Goodman, the surety, having paid the debt, is entitled 
 to be remitted to all the rights of the creditor, and to be paid from Loth- 
 rop's estate, as if the United States were now claiming. — Aldrich v. 
 Cooper, 8 Ves. 382. As to the right of setting up the judgments, 
 Kobinson v. Wilson, 1 Mad. Rep. 567. Lord Eldon, in Copps v. 
 Middleton, overruled this last case, allowing, however, that if there 
 had been a mortgage as a collateral security, the principal would have 
 been right; and in this case, the judgment may be set upon the same 
 principle. 
 
 Gilchrist and Kiiig, contra. It is not denied that Goodman's assignees
 
 206 SOUTH CAROLINA EQUITY REPORTS. [*264 
 
 are entitled to contribution — the rank which they are to occupy is the 
 tiuestion. Against the principal debtor they may I'ank as the United 
 States, but as against the co-surety, neither under the Acts of Congress, 
 nor by the general principles of Equity, can they claim other than as a 
 simple contract creditor. The preference under the Act of Congress 
 applies only between the surety and his principal — it has no application 
 between co-sureties, and it has been so ruled. Pollock v. Pratt & Haney, 
 2 Wash. C. C. Rep. 490. Nor will the equity doctrine of subroga- 
 *0APii tion* apply. Noonan v. Gray, 1 Bail. 437 ; Stat. Eq. Rep. 91 ; 
 ^^^^ Coppsu Middleton, 1 T. & Russ. 224; 10 John. Rep. 549. 
 Aldrich v. Cooper does not apply to this case. This is not a case of a 
 creditor having two funds from which to be paid, and where he might be 
 compelled to take one so as not to prejudice other creditors ; this is a 
 claim to priority. 
 
 O'Neall, J. By the 5th section of the Act of Congress of 1197, (1 
 Story Laws of the U. States, 465,) it is provided, " that where any 
 revenue ofificei*, or other person, hereafter becoming indebted to the 
 United States, by bond or otherwise, shall become insolvent, or where 
 the estate of any deceased debtor, in the hands of executors or adminis- 
 trators, shall be insufficient to pay all the debts due from the deceased, 
 the debt due to the United States shall be first satisfied ; and the priority 
 hereby established shall be deemed to extend, as well to cases in which a 
 debtor not leaving sufficient property to pay all his debts, shall make a 
 voluntary assignment thereof, or in which the estate and effects of an 
 absconding, concealed or absent debtor shall be attached by process of 
 law, as to cases in which an act of legal bankruptcy shall be committed." 
 
 The 65th section of the Act of 1799, (1 Story's Law of the U. S. 630,) 
 after directing a suit to be brought on any bond for duties which may 
 not be paid on the day on which it becomes due, directs that " in all 
 cases of insolvency, or where any estate in the hands of executors, admin- 
 istrators or assignees, shall be insufficient to pay all the debts due from 
 the deceased, the debt or debts due to the United States on any such 
 bond or bonds shall be first satisfied. " The proviso declares, that if the 
 principal be insolvent, or if he be dead, and his estate be insufficient to 
 pay all his debts, and the surety or his representatives shall pay the 
 money due on such bonds to the United States, then that the said surety 
 or his representatives " shall have and enjoy the title, advantage, priority 
 or preference for the recovery and receipt of the said moneys out of the 
 estate and effects of such insolvent or deceased jjrincipal, as are reserved 
 and secured to the United States. 
 
 Under these two acts, the United States were entitled to be preferred 
 and first satisfied out of the estates and effects of Weyman. Goodman 
 and Lothrop, under the last act, the security paying the debt, would be 
 entitled to be preferred and first satisfied out of the estate and eSects of 
 the insolvent principal. 
 
 *266l ^^^^^ it is perfectly clear that it does not give to him the prefer- 
 ence of the United States to be paid out of the estate of his co- 
 security. The case of Pollock v. Pratt & Haney, 2 Wash. Cir. Court 
 Rep. 490, is a direct authority upon the point. Judge Washington 
 said, " In regard to the advantages reserved to the surety in the custom-
 
 *266] CHARLESTON, MARCH, 1835. 207 
 
 house bond, the provisions are confined to the estate and effects of his 
 insolvent or deceased principal.''^ In that case the claim was by the 
 surety against the assignees of one of the assignees of an insolvent ])rin- 
 cipal ill a custom-house bond, who had received a large sum of his 
 assignor's estate, mingled it with his own, and then became insolvent and 
 assigned to the defendants. Under such circumstances. Judge Wash- 
 ington ruled that the plaintiff was not entitled to be preferred, and used 
 the words which I have quoted. If in such a case the plaintiff was not 
 entitled to be substituted in the place of the United States, it would 
 seem to follow pretty clearly, that the claim of the co-surety, Goodman's 
 assignees, to be substituted iu the place of the United States, against the 
 administrator of William Price, the assignee of Lothrop, the co-surety, 
 cannot be allowed to prevail. For here as well as there, it may be said 
 that the provisions of the act of Congress do not cover the case made. 
 
 But it is said, concede this to be true, and still the assignees of Good- 
 man, on the general principles of Equity, have the right to stand in the 
 place of the United States, and tne case of Aldrich v. Cooper, 8 Ves. 
 381, was cited and relied upon in support of that position ; but I think 
 it does not sustain it. This is not a case of a party having two funds ; 
 and therefore the equity rule laid down in Aldrich v. Cooper, that in 
 such a case a party shall not by his election disappoint the party having 
 only one fund, cannot apply. By the custom-house bond, the United 
 States had the right to expect ])ayment from any one of the three obli- 
 gors, Weyman, Goodman or Lothrop. But they could not be forced by 
 Goodman to accept his part of the bond, and look to Lothrop for the 
 balance. It was an entire debt due by all or either of the obligors. 
 Payment of it by one of the co-sureties entitled him to contribution as 
 for so much money paid, laid out and expended ; and the debt thus due 
 to him by his co-surety, is a mere simple contract. This was ruled by 
 Lord Chancellor Eldon, in Copps (;. Middleton, 1 T. & Buss. 224. _ In 
 that case, the Lord Chancellor stated the conclusion, which is, I think, 
 directly applicable to this He said, " there has been a case cited, where, 
 upon the ^general ground that a surety is entitled to the benefit of r^QgY 
 all securities which the creditor has against the principal, it seems '- 
 to have been thought that the surety was entitled to be, as it were, a bond 
 creditor by virtue of the bond. I take it to be exceedingly clear, if at 
 the time a bond is given a mortgage is also made for securing the debt, 
 that the surety, if he pays the bond, has a right to stand in the place of 
 the mortgagee, and as the mortgagor cannot get back his estate again 
 without a conveyance, that security remains a valid and effectual security, 
 notwithstanding the bond debt is paid; \mt if there is nothing but the 
 bond, my motion is, that as the law says that the bond is discharged by 
 the j^ayment of what was due upon it, the bond is gone and cannot 
 be set up." The bond to the United States was paid by Godman's 
 assignees; in the language of Lord Eldon, "it is gone and cannot be set 
 up." If the bond is gone, it follows that the preference given to the 
 United States to be first paid and satisfied out of the estates ami effects 
 of all the obligors is also gone. The surety has none of the rights of 
 preference of the United States, except as against the ]n'incipal. The 
 same reasoning applies to the judgment which was a joint debt against 
 Weyman, Lothrop and Goodman, Satisfaction of it by any one of the
 
 208 SOUTH CAROLINA EQUITY REPORTS. [*267 
 
 parties, was a satisfaction of it against tbem all ; the law, without any 
 further act to be done, ended its legal operation. If there had been 
 separate judgments against each of the obligors, then it might have been 
 that the satisfaction of one of the judgments against one of the sureties 
 liy himself, would not have been necessarily a satisfaction of all the 
 other judgments, unless it was so intended by the surety making the 
 payment. 
 
 It is ordered and decreed, that Chancellor Johnston's decree be 
 affirmed, (a) 
 
 JoHNSOxX, J., concurred. 
 
 Francis Thackum and "Wife, and others, v. Joseph Longwortii. 
 
 How far the Court will interfere to prevent the negotiation by an executor or ad- 
 ministrator, of notes or bonds taken by him on sale of the deceased's effects. 
 [*274] 
 
 An executor being indebted to the defendant the executor of another estate, by 
 bond secured by mortgage, while solvent, transferred to the defendant in payment 
 of his own debt, bonds taken on a sale of his testator's estate, and defendant gave 
 up his bond and mortgage, and paid over his money to the legatees. The ex- 
 ecutor became insolvent, and on a bill by the legatees of his testator, it was held 
 that the defendant was not liable for the money received by him on the bonds — 
 the equities being equal the law must prevail. [*275] 
 
 The following brief of the appellant's counsel is the only statement of 
 the case which the reporter can present : — 
 
 The bill states that Thomas Milliken died in the year 1719, having 
 jcopo-i *previously executed his will, in which he appointed John M'Nish 
 -' his executor, and by which, after the death or marriage of his 
 widow, he bequeathed all his estate to the plaintiffs — that N'Nish quali- 
 fied, and in 1819 sold all the estate of his testator on credit, and took 
 bonds for the purchase money — among others, one of James Cole for 
 $900, one of Pearson Hardie for $850, and one of Isaac Hardie for $600. 
 That the plaintiffs, being young, did not for a long time look after their 
 rights; and in the mean time the executor, being deeply involved, wasted 
 the estate and became insolvent. That he entered into a negotiation 
 with the defendant, Joseph Longworth, who well knew his situation, for 
 the purchase of a plantation called Stock Farm ; and that Longworth, 
 knowing the said bonds to be of the assets of the estate of Milliken, sold 
 plantation to M'Nish, and took the bonds in payment and applied them 
 to his own use — that M'Nish is totally insolvent, and the plaintifi's have 
 not received one cent of their father's estate. The bill prays that Joseph 
 Longworth may account to them for the money so received. 
 
 The answer of Joseph Longworth states, that as executor of his 
 brother, Archibald Longworth, he sold to John M'Nish, in the year 
 1818, the plantation mentioned in the bill, for $7500, and received in 
 cash one-third of the purchase money, and took the bonds of M'Nish, 
 payable in 1819 and 1820, with a mortgage of the premises, for the 
 residue. That M'Nish afterwards paid $2000, and he considered the 
 
 (a) See Perkins v. Kershaw, 1 Hill's Ch. o51.
 
 *268] CHARLESTON, MARCH, 1835. 209 
 
 debt amply secured by the raortgap;e. That in 1820, M'Xish offered the 
 defendant the bonds of Cole and Hardie, in payment of his own, which 
 he refused. That M'Nisli then requested him to collect them fur him, 
 which he agreed to do, and M'Xish delivered them to him endorsed in 
 blank, and the defendant gave him a receipt for them, stating that he, 
 had received them for collection. That he called on the parties and 
 received the money due thereon, which he considered himself as holding 
 for M'Xish, and offered to pay it to him, but M'Xish i-equested him to 
 credit his bond with it, which he accordingly did, upon which M'Xish 
 gave him a paper, which he has unfortunately not kept, in the following 
 terms : — 
 
 Received, 29th January, 1823, of Joseph Longworth, $2800.17, being 
 the amount collected by him for me, from Messrs. Hardie and Cole, on 
 account of the estate of Thomas Milliken. 
 
 (Signed) J. M'Xisii, Ex'or. 
 
 *He denies that he knew the situation of the estate, or that r:^.^/.Q 
 M'Xish had no right to pay him the money. That he did not con- '- 
 sider the money his until his settlement and accounting with M'X^ish as 
 aforesaid. That M'X^ish afterwards paid him the balance due, and he 
 gave him up his bond and mortgage to be cancelled. That M'Xish was 
 then in good credit, and continued so till 1827, when his property was 
 sold by the sheriff; and he believes it would then have paid his del)ts, if 
 it had not been bought up by his friends. That the farm was bought at 
 this sale for $800, and a part sold soon after for $2500, and the negroes 
 sold for $100 per head. That in 1825 the plaintiffs sued M'Xish, and by 
 diligently prosecuting their suit, might have recovered their money — and 
 that the defendant was never called on by the plaintiffs to account to 
 them, or had notice of their claims till the filing of this bill. 
 
 In January, 1833, the cause came on before Mr. Justice Harper, sit- 
 ting for Chancellor De Saussure. 
 
 John M'Xish, sworn on the part of the plaintiffs, says : — Longworth 
 was pretty hard on me for the money I owed him — wrote to me several 
 times [some of the letters produced] — I went to him and asked him to 
 take the bonds, as he was more in the habit of collecting than I was, and 
 if he could collect the money before I could pay him, he should have it. 
 I took a receipt for them. I gave him a receipt for the money just be- 
 fore the last Court, as a memorandum of the settlement which took place 
 in 1823. I have not the receipt which Mr. Longworth gave me ; the 
 purport was that he had received the bonds, and when collected would ac- 
 count to me for them. The debt to Longworth was for a plantation of 
 the estate of Archibald Longworth, at the price of $7000 ; the stock was 
 $500 more,— $2500 were paid at one time, $2000 at another. Tiie 
 money received on account of these bonds was $2800. I sold negroes to 
 Col. Martin to pay the residue, and he took up the b.md and mortgage, 
 which are now in his hands. I proposed to Mr. Longworth to collect 
 the lionds and account to me for them, and had no idea of insolvency at 
 this time ; and I believe Longworth thought the debt well secured. He 
 said his brother's estate wanted the money. My settlement- with him 
 was after May, 1823. My insolvency is to be dated from 1824 or 1825, 
 by the loss of crops by caterpillars. My negroes were all sold in 1826 or 
 1827, except those I sold to Col. Martin — at the time of the transaction
 
 210 SOUTH CAROLINA EQUITY REPORTS. [*269 
 
 ♦o'rni ^'^^^^ *Longworth, I paid taxes for forty or fifty, probably more. 
 '''"-' The plantation sold at sheriff's sale for $800. 
 
 Sundry executions in the sheriff's oflBce against M'Nish were given in 
 evidence. 
 
 His Honor decreed that the defendant should account for the $2800 
 received by him, with interest. 
 
 From this decree the defendant appealed, and now moves to reverse 
 the same. 
 
 Petigru, for the appellant, argued, that the conduct of the defendant 
 was free from artifice or design. He, too, was an executor, acting not 
 for his own, but the benefit of others. The money was due to him as 
 such, it was amply secured. In the first instance he acted as the naked 
 agent of M'Nish, in collecting the money on these bonds, and after col- 
 lection, while he was still in good credit, and the affairs of Milliken's 
 estate unknown to him, he had a settlement with M'Nish, in which he 
 gives up the security he had, on receiving the money collected, and has 
 since paid it over. The complaint really is, that the defendant has been 
 more diligent in obtaining money than the plaintiffs. The law favors 
 the vigilant — every one who collects money from a man in failing circum- 
 stances, may be said to get another's money ; nor can it be material 
 whether in receiving payment of a just debt, if it be paid by the executor 
 with his own money, or with money over which he has a legal control. 
 Some one must lose. Shall it be the defendant or the plaintiffs ? There 
 may be great hardship on their part, but equal hardship on that of the 
 defendant. The equities are at least equal, and in such case the law must 
 prevail. 
 
 Under the circumstances, can the plaintiffs follow these funds ? Whose 
 were they ? In law, beyond all question, they were M'Nish's ; if he had 
 died, the bonds would have been his assets. Seabrook v. Williams, 3 
 M'C. 371. Suppose he had been sued by the defendant, and arrested on 
 a ca. sa., and the ca. sa. paid by these funds, could he have been detained 
 in custody, although it might be known that they were Milliken's funds ? 
 The defendant is chargeable, if at all, for having collected the money on 
 these bonds and applied it to M'Nish's debt, knowing it to be the funds 
 of Milliken's estate; but there is no case to be found in which money has 
 been followed into the hands of a bona fide creditor, nor any principle 
 5^c,y, -, on which a creditor can be called on to refund *money received in 
 -^ payment of a just debt, without fraud. He reviewed and com- 
 mented on the cases cited by the plaintiff's counsel, and thence insisted 
 that the extent of the rule on the subject is, — that if one by fraud or col- 
 lusion with the executor, obtain the assets, or the payment of a desperate 
 debt of the executor, relief will be granted — and that the facts of this 
 case did not show such fraud or collusion to justify the application of 
 this principle. — Cited Taner v Ivie, 2 Yes. sen. 466, Ewer v. Corbett, 
 2 P. W. 148; Nugent u. Gifford, 1 Atk. 463; Elliot v. Merriman, 2 
 Atk. 41. 
 
 Elmore, contra. The first question is, did Longvvorth receive the 
 bonds on a mere naked trust to collect the money, or to collect and apply 
 to his debt. Although he states in his answer that he received them 
 merely in trust to collect and pay over, that he did not, will be seen from
 
 *271] '' CHARLESTON-, MARCH, 1835. 211 
 
 the circumstances. The bonds are endorsed in blank by M'Xish, shew- 
 ing an absohite transfer lu his letters to M'Nish, he speaks uf having 
 received money on these bonds, as applicable to INI'Nish's bond to him- 
 self. From the evidence of M'Nish and the statement of the settlements, 
 it appears that the defendant had actually given M'Nish credit on his 
 bond for the amount of the bonds of Milliken's estate, a year before the 
 final settlement in 1823, when he got M'Nish's receipt. [He here went 
 into a detailed statement of the dealings of these parties to show this 
 fact.] Lastly, the explicit evidence of M'Nish, that the understanding 
 under which the bonds were delivered to him was, that the money, when 
 collected, should be applied to his bond, if it was not paid sooner. Be- 
 sides, it is not a little remarkable that he should gratuitously undertake 
 the trouble of collecting these bonds, as the mere naked agent of M'Nish, 
 expecting to derive no benefit from them. There cannot be a doubt that 
 he received these bonds with the understanding and intention of further 
 securing his debt — to be applied to its payment, and not merely to col- 
 lect. But conceding that he received them merely as agent of M'Nish, 
 the result must be same. He knew they were assets of Milliken's estate, 
 and applied them to his own use in fraud of the legatees, 
 
 Had M'Nish the right to sell these bonds? It is of great consequence 
 that the question be clearly settled, how far an executor or administrator 
 may dispose of the equitable assets of the estate. *The English rj^^otrn 
 law allows greater control to executors than ours. The Act of '- *" 
 '89, (2 Brev. Dig. 95,) restricts their rights. It declares, " that when it 
 shall be requisite to make sale of any part of the personal estate, (for 
 any purpose,) application shall be made to the Court of Ordinary;" 
 which Court may " refuse or grant such order for sale, regulating the 
 time, place and credit to be given, (Why?) so as to do impartial justice 
 to all persons interested therein,'' And when the will gives the power to 
 sell — a mere naked power — it may well be doubted whether it is still not 
 necessary to obtain an order regulating the important requisites of " time, 
 place and credit," so as to do " impartial justice to all concerned." 
 Such was clearly the leaning of the Court, in Saxon v. Barksdale 4 Eq, 
 Rep. 528. The will gives the executors the right to sell such property 
 as "they may think proper, and to purchase such property as they shall 
 judge beneficial." The authority is to both executors — one only trans- 
 ferred the bond, although two were acting ; one acting under authority, 
 can only bind to the extent of his authority, 5 T. R. 606. If tlie de- 
 fendant knew that under the will, M'Nish had power to disi)ose of the 
 funds, he also knew the purpose for which they were to be disi)()sed of; 
 and by taking the funds into his own hands, he becomes himself the 
 trustee.. 2 Eq. Rep. 378-9. 
 
 Had the defendant notice at the time of the transfer, that these bonds 
 were assets of Milliken's estate ? He swears in his answer that he had 
 no notice, except that the bonds on their face were payable to M'Nish as 
 executor. This however is explicit notice, and supposing it were not, it 
 was sufficient to put him on the iniiuiry. When defendant might, l)y dili- 
 gence, have had notice, plea of want of notice shall not avail him. — 
 Jackson & Wife v. Row, 2 Sim & Stuart, 412; Smith v. Ldw, 1 Atk. 
 490; Allen & Anthony, 1 Mer. 282; Daniels t;. Davidson, 16 Yes 219; 
 Powell V. Dillon, 2 Ball & Beatt}', 416, The bonds pointed the defend-
 
 212 SOUTH CAROLINA EQUITY REPORTS. [*272 
 
 ant to the Ordinary's office, where he would have learned — from the will, 
 the petition of sale and the accounts of the executor — that the executor 
 was always in arrears — that these bonds, by a special provision of the 
 will, were the property of these plaintiffs. In Saxon v. Barksdale, 4 Eq. 
 Rep. 528, and Franklin v. Creyon, Harp. Eq. Rep. 251, it was held, 
 that the record of a will is notice of its contents to all the world; and 
 by the same reasons, records of petitions, orders for sale, and executors' 
 ^ohq-i accounts in the Ordinary's ^office, are equally notices of their con- 
 *" -I tents. Long-worth was living in the neighborhood, had access to 
 these sources of information, and it is hardly credible that he had not 
 full notice of all the facts. 
 
 What is the effect of notice to the defendant ? Lord Hardwicke says, 
 in Mead u Orrery, 3 Atk. 238, "If one will purchase with notice of 
 another's rights, he throws away his money." It is settled in the English 
 authorities, that where the assignment or pledge is for advances made to 
 an executor or administrator at the time, it will be supported, unless it 
 be apparent that it was upon collusion and not for the benefit of the 
 estate. " It is prima facie good, being presumed that the advance is to 
 enable the executor to pay the debts." — M'Leod v. Drumraond, 17 Yes. 
 154. Here there was no advance, but the bonds were assigned to be 
 collected and applied to M'Nish's antecedent debt. " This is very mate- 
 rial," says Lord Eldon, in M'Leod xi. Drummond. Longworth well 
 knew that the funds were not to be applied to any of the trusts of the 
 will, and this, Lord Eldon, in the same case, considers one of the strongest 
 proofs of "fraud and collusion." If one concerts with an executor to 
 obtain the testator's effects and apply them to his own behoof, or in ex- 
 tinguishment of the private debt of the executor, or in any way contrary 
 to the duty of the executor, such concert will involve the seeming pur- 
 chaser and make him liable. — Scott i'. Tyler, 2 Bro. Ch. Rep. 431 ; see 
 also 2 Vern. 444; 1 Bro. Pari. Ca. 11. And in Downes v. Power, 2 
 Ball and Beatty, 491, it is said, "Whoever deals with an executor for 
 assets for a purpose inconsistent with due administration, subjects himself 
 to a devastavit. See also Hill v. Simpson, 7 Ves. 152 ; Bonney v. Rid- 
 gard, 1 Cox's Ch. 145; Field v. Schieflin, 7 John. Ch. Rep. 150, to the 
 same effect. The whole doctrine is strongly and concisely stated by 
 Mr. Eden, in his note to the case of Andrew v. Wrigley, 4 Bro. C. 
 R. 137. 
 
 It is urged that the equities are equal ; and that being the case, the 
 law must prevail. They are not equal. The plaintiffs were infants, 
 ignorant of their rights and confiding in their father's executor. The 
 defendants knowing these funds to be theirs, concerts with him to mis- 
 apply them. If he should sustain loss, it will be from his own wrongful 
 ai)propriation of funds he knew to be of right the plaintiffs'. Nor is he 
 so free from " artifice and design," as he is represented. Why take a 
 receipt lately, dated back in 1828? To supply the one which he lost? 
 M'Nish says he gave none then. 
 
 *274l O'Neill, J.* This case for the first time presents to this Court 
 the question, how far it can interfere to prevent the negotiation 
 by an executor or administrator, of notes or bonds taken by him for the 
 proceeds of the sale of the goods of the deceased.
 
 *274] CHARLESTON, MARCH, 1835. 213 
 
 In sucli choses in action he has a clear legal right of property, inde- 
 pendent of his character as executor or administrator. For at his death 
 they do not, by operation of law, pass to the administrator de bonis non 
 of the testator or first intestate, but are, in point of law, the property of 
 the deceased executor or administrator, and his administrator can alone 
 maintain an action for their recovery, Seabrook ads. Williams, 3 M"C. 
 371. It is true that the proceeds of such choses in action are in Equity 
 regarded as assets, and will be so treated and considered in the hands of 
 the executor or administrator to whom they were made payable, or any 
 of his immediate representatives. Miller v. Alexander, 1 Hill's Ch. 
 Rep. 25; Capehart and wife i'. The Administrators of Huey. — 1 Hill's 
 Ch. Rep. 405. So, too, in all such cases, they would be protected from 
 being made liable by the process of law, for the debts of the executor 
 or administrator. — Glassy. Baxter, 4 Sep. 154; Tolbert i;. Harrison, I 
 Bail. 599 ; and in all cases of fraudulent alienations, the Court would 
 follow and treat them as assets of the estate. But beyond this I am not 
 prepared to go. For generally speaking, an alienee would have a clear 
 legal estate in the chose in action to which, (unless it can be overreached 
 by a superior equity, or be shown to be defeated by fraud,) a Court of 
 Equity as well as a Court of law, is bound to give effect. If the equity 
 of the alienee and that of the creditor, legatee or distributee, be equal, 
 the legal estate must prevail. I have looked through the cases referred 
 to in the decree and in the argument with as much care as I could, and I 
 concede that they sustain the position that an alienation by an executor 
 or administrator of chattels or choses in action belonging to the testator 
 or intestate, in his lifetime, for the payment of the debt of the executor or 
 administrator, would not in Equity f/eneraUy be allowed to prevail 
 against creditors, legatees or distriljutees — Scott v. Tyler, 2 B. C. R. 
 431 ; Andrew v. Wrigley, 4 B. C. R. 124; Bonney v. Ridgard, 1 Cox's 
 Ch. Rip, 145; Hill v. Simpson, 7 Yes. 152; M'Leod l\ Drummond, 14 
 Ves. 352, and 17 Ves. 152; Field v. Sehieflin, 7 John. Ch. Rep. 150; 
 Saxon V. Barksdale, 4 Eq. Rep. 522. All of these cases, in which relief 
 was granted against alienations by an executor or administrator in pay- 
 ment of his own debt, or in which the *Court thought that the r;;,.^-- 
 party on that ground was entitled to relief, but denied it on some '- 
 other, such as lapse of time, (except Field v. Sehieflin,) were cases of 
 alienations of chattels belonging to the deceased in his lifetime. The 
 case of Field v. Sehieflin was an alienation by a guardian of a bond exe- 
 cuted to him as guardian. The Chancellor, without adverting to the 
 distinction, which, I think, exists between alienations of chattels, or choses 
 in action belonging to the deceased in his lifetime, and such as are ac- 
 quired by the executor or administrator with, or which are given to him 
 for, the proceeds of the estate, gave relief. 
 
 Would it be allowed in England, if it could be shown that the money 
 received for a chattel aliened by the executor had been vested in bonds or 
 stock, and these had been aliened in payment of the executor's own debt, 
 that these last should be followed into the hands of the purchaser, and 
 his legal title be defeated? That no such case is found in the-English 
 books is strong evidence that such a case is regarded as too desperate 
 of even a chance of success to be presented to a Court The sale of the 
 testator's or intestate's goods and chattels, is made according to law. 
 Vol. L— 37
 
 214 SOUTH CAROLINA EQUITY REPORTS. [*2T5 
 
 ends the equitable rights of the creditor, legatee or distributee, to be paid 
 out of them. The proceeds are at laic, as we have already seen the 
 executor's or administrator's property ; so, too, it must be conceded, are 
 the goods, chattels and credits of the deceased generally. At law, prior 
 to the Act of 1824, he had no absolute right of disposition, and where 
 the will directs a sale, he still has that right. Jones v. McNeill, 1 Hill, 
 84. But to some extent, the goods and chattels, of which the deceased 
 died possessed, are still regarded as not the absolute property of the 
 executor or administrator : in a contest between an execution creditor of 
 the deceased and of the executor or administrator, the goods would be 
 held liable to the former and not the latter. Jones v. McNeill, 1 Hill, 
 84. Such a distinction could not, however, be made in favor of a creditor 
 of the deceased, in a contest at law for payment out of the proceeds of 
 choses in action, payable to the executor or administrator. "When the 
 goods and chattels of the deceased are sold, or his choses in action col- 
 lected, the liability of the executor or iidministrator to account for the 
 proceeds to all parties interested, is generally that to which they must 
 look. The right to collect these proceeds is indispensable to the excutor's 
 or administrator's now safety. The right to use the fund as his own, is 
 ^j)K/.-i also a necessary *consequence from his liability to account. For 
 -^ after he sells, he is not charged with the proceeds as he receives 
 the money on the notes or bonds, but with the amount of the sales as 
 cash received. Wright v. Davis, 2 Hill, 560, decided at Columbia, last 
 term. Upon this sum (the amount of the sale bill) he is chargeable with 
 interest, which shows that he is regarded in contemplation of law as in 
 the use of the money. He cannot be discharged from his liability to 
 account for the proceeds of the sale, but by showing that without any 
 fault of his own he has been unable to make them available. If he w^as 
 not allowed to alien the notes or bonds taken for the proceeds of the sale, 
 (without any other restriction than it should be done without fraud,) it 
 would subject him to the consequences of general liability, for the pro- 
 ceeds of the sale, without any corresponding advantage. For after he 
 made a sale, and charged himself in the sale bill with the value of the 
 goods, yet he would stand in relation to the proceeds as if they were the 
 goods and chattels and credits of the deceased. Such cannot be the 
 case. If it was, the executor or administrator ought to return to 
 the ordinary, the bonds or notes so by him taken. There is no difference 
 in respect to this question between an administrator or executor ; yet, if 
 it be true that when an administrator transfers the bonds taken by him 
 for the goods of the deceased in payment of his own debt, such transfer 
 would be void, it would follow that his securites for the administration 
 would, as w^ell as creditors, legatees or distributees, have the right to 
 follow the fund ; yet, I apprehend, such a consequence ought not gene- 
 rally to be allowed. I have already said that an alienation of the bonds 
 or notes, payable to an executor or administrator, ought not to be over 
 reached or defeated but by a superior equity, or by fraud. In the trans- 
 fer of a chose in action by a solvent executor or administrator, in pay- 
 ment of his own debt, it would seem to me that the equity of the creditor 
 of the executor or administrator is fully equal, if not superior, to that of 
 the creditor of the testator or intestatate, the legatee or distributee. In 
 such a case, he parts with the precise money value of the thing acquired.
 
 *276] CHARLESTON, MARCH, 1835. 215 
 
 For the debt of the solvent executor or administrator, which miu:ht have 
 been otherwise collected, is given up. The question is, who, of two 
 innocent persons are to be losers ? It cannot be answered, that he who 
 has the legal interest is to be the man, and yet this would l)e the case, if 
 the rights of the alienee were defeated. If *the executor or ad- r^gtr^ 
 ministrator were insolvent, and should transfer the chose in action L ' 
 in payment of his own debt, in such a case the equities would not be equal : 
 for there the alienee would have paid nothing, and his legal estate would 
 be over reached by the equity of the creditor, legatee or distributee of 
 the testator or intestate, and the alienee would be turned into a trustee. 
 So, too where there has been a fraudulent alienation, there the fraud 
 defeats the title conveyed, and the alienee holds by a constructive trust 
 for the uses of the creditor, legatee or dis' ributee of the testator or intes- 
 tate. From these views these plaintiffs are not entitled to recover. The 
 executor, McNish, after his testator's death, legally sold his estate accord- 
 ing to the will. The bonds now in controversy were given to him, as 
 executor, for the proceeds of that sale. He was indebted to the defend-. 
 ant as executor of Archibald Longworth, deceased — this debt was secured 
 by a mortgage. In payment and discharge of this debt, he, when solvent, 
 paid and delivered to the defendant, the bonds and notes now in dispute, 
 and thereupon the defendant gave up to him his bond and mortgage and, 
 has subsequently accounted for and paid the amount to the devisees of 
 his testator. 
 
 According to this statement, his equity is fully equal, if not superior 
 to that of the plaintiffs, and hence his legal title must prevail. 
 
 It is ordered and decreed, that the Circuit decree be reversed, and the 
 plaintiff's bill dismissed. 
 
 Johnson, J., and Evans, J., (sitting for Harper, J,,) concurred. 
 
 The Administrator and Administratrix of Thos. N. Johnson, i'. Jos. 
 Johnson, surviving Executor of Mary Johnson, deceased, the Ad- 
 ministrator of RoBT. Brailsford, John Miles and wife, the widow of 
 Alex. W. Garden, deceased, and James H. Hext, Administrator 
 and Administratrix of the said A. W. Garden, and Kobt. H. Garden, 
 his only surviving child. 
 
 The doctrine of waste, as applicable to this country, considered. [*281] 
 
 After the division of an estate and the appointment of a guardian for a minor 
 legatee, the executors are no longer accountable for the income of the estate 
 assigned to the minor; his guardian is alone entitled to possession of the estate, 
 and must account accordingly. [*284] 
 
 When from the facts, an executor who was also guardian might be charged with 
 tne receipt of monies either as executor or guardian, he must account in the latter 
 character; for whatever funds he had in his hands as an executor, were by opera- 
 tion of law, transferred to him as guardian. [*285] 
 
 A parol discharge of a guardian by his ward just after coming of age, without an 
 account, will not bar an account against the guardian. [*286] 
 
 The security of a guardian is liable for the default of his principal, to the amount 
 of the penalty of the bond, and not merely to the value of the property set out in 
 the petition praying the appointment. [*287]
 
 216 SOUTH CAROLINA EQUITY REPORTS. [*277 
 
 A father, as sucb, bas no right to receive a legacy of his child: and therefore where 
 an executor paid a legacy to the father of an infant legatee, and afterwai-ds on 
 the demand of the legatee's guardian, his co-executor paid it to the guardian, the 
 last payment was held proper and that the executor who made the first, was liable 
 to the estate for his improper payment. [*288] 
 
 Nor will the fact that the father of the legatee was a co-executor be an excuse ; for 
 although executors are primarily regarded as only separately liable, yet, if they 
 concur in any act touching the estate, they are jointly liable. [*288] 
 
 Liability of co-executors for the acts of each other considered and the cases on the 
 subject examined. [*28^»] 
 
 The result of the cases seem to be that where by an act done by one executor, any 
 part of the estate comes to the hands of his co-executor, the former will be 
 answerable for the latter in the same manner as for a stranger whom he had 
 enabled to receive it, and there is no distinction in respect to their liability, 
 between legatees and creditors. [*293] 
 
 An executor who applied to the ordinary for an order of sale and returned the sale 
 bill held liable for the amount of the sale, although his co-executor assisted in the 
 sale and received part of the money. [*295] 
 
 Cases decided in this State in relation to waste committed by tenants for life and 
 tenants in common. [*29G] 
 
 Where a tenant in common by cutting down and clearing wood land beyond his 
 interest injures his co-tenant, he is liable for waste ; and so too if a tenant for life 
 cut down more than is necessary for the enjoyment of his estate and injures the 
 remainder, he is guilty of waste and liable to account. [*290] 
 
 Tenant for life in right of his wife of land and slaves, with remainder in fee of one- 
 sixth in the land after her death, cleared out wood land in the centre of the tract, 
 not leaving sufficient timber to repair the place: — Held, that if there was open 
 land sufficient for the employment of the wife's slaves when the husband got pos- 
 session, the clearing by him was waste. [*297] 
 
 Rent and hire to which plaintiffs were entitled under a former decree set out in this 
 bill, now allowed. [*297] 
 
 Bill for an account. This case bad, by previous orders of the Court, 
 been referred to the Commissioners, to state the accounts, and to take 
 ^fj^oi ^^^6 testimony preparatory to trial ; and came up for *hearing 
 -■ before Chancellor Johnston, at Charleston, May, 1834, on the 
 report of the Commissioner, and the evidence taken by him, from which 
 the following appeared to be the state of the facts : 
 
 Thomas N. Johnson, the elder, was, at the time of his death, possessed 
 of a large estate, mostly in Clarendon county, Sumter district : he left at 
 his death a widow, Mary, and an only child, Sarah, him surviving. Some 
 short time after his death, the plaintiffs' intestate was born. Thomas N. 
 Johnson, the elder, left a will, the only clauses, or parts of clauses, which 
 it is important now to notice, are the following : " Item, I give and 
 bequeath to my beloved daughter, Sarah, to her, and the heirs of her body 
 lawfully begotten, all the rest and residue of my estate, wherever it may 
 be found, both real and personal." "I omitted to mention in the proper 
 place, that it is my will, that should my daughter marry and leave at her 
 death a husband and no children, that he?' husband shall have the profits 
 and use of the estate during his lifetime,^'' &c. 
 
 He named as his executors, Matthew James, Charles Connors and Dr. 
 Joseph Johnson : and assigned to each of them a specific department, in 
 which they should act ; the first named, Mr. James, was directed to take 
 charge of that part of the estate left to his sister, the testator's widow ; 
 the second, Mr. Connors, to take charge of the testator's business at 
 Jack's Creek ; and the third. Dr. Johnson, to attend to his business in 
 Charleston.
 
 *27S] 
 
 CHARLESTON, MARCH, 1835. 217 
 
 There appears to be no question arising out of the acts of the execu- 
 cutors, until after a division of the estate had been made between Sarah 
 and Thos. N. Johnson, and Robert Brailsford had been appointed the 
 guardian of the person and estate of the latter. This appointment took 
 place at February terra of the Court of Equity in 1818. His letters of 
 guardianship are dated the 19th day of February, 1818. He gave his 
 bond with Dr. Alex. W. Garden, as his only security : on the 24th of 
 February, 1820, he made a single return, stating the land and negroes, 
 and stock of his ward, wiiich he received from the former guardian. 
 Among the papers furnished, there is a very particular account of his 
 receipts and expenditures from 1818 to 1824, accompanied by many 
 vouchers. During the time of his guardianship, it seems, from the Ijooks 
 of Chisolm & Taylor, the factors of the estate of Thomas N. Johnson, 
 and Mary Johnson, that Joseph Johnson received considerable sums, 
 parts of the income of both estates. Sarah, previous *to this time, r^jsg^q 
 had intermarried with Alexander W. Garden, and died without ^ "' 
 issue. In January, 1818, Mrs. Mary Johnson died, leaving a will, of 
 which she appointed Alexander W. Garden, Robert Brailsford, and Dr. 
 Joseph Johnson her executors. By it, she gave a legacy of $1000 to 
 Theodore Brailsford, son of Robert Brailsford, and after several other 
 bequests, she gave the residue of her estate to her only surviving child, 
 the plaintiff's intestate. 
 
 All the executors qualified. Alexander W. Garden applied, on the 
 10th of March, 1818, to the Ordinary of Sumpter district, for an order 
 to sell the perishable article of her estate, which he obtained, and under 
 which it is probable they were sold by himself and Brailsford, to the 
 amount of $1142 36. Alexander W. Garden, however, alone returned 
 the sale bill. 
 
 About $t00 of the proceeds of this sale were collected by Brailsford ; 
 of the balance, except $3 accounted for by Alexander "W. Garden, no 
 account is given. Alexander W, Garden paid the legacy of $1000 
 bequeathed to Theodore Brailsford by his testatrix, to Robert Brailsford, 
 the legatee's father, during the minority of the said legatee, and charged it 
 in his account for 1818, returned to the ordinary. It seemed that this 
 account closed the acts of Alexander W. Garden with his testatrix's 
 estate. He died on the 5th of August, 1820, leaving a widow, who has 
 since intermarried with John Miles, and two children, only one of whom 
 is now surviving. James H. Hext and the widow administered on his 
 estate, and were in possession of the estate of Alexander "W. Garden, 
 including the land and negroes of his first wife, Sarah, devised to her by 
 her Father, Thomas N. Johnson, the elder. A bill was filed by Robert 
 Brailsford, as guardian of Thomas N. Johnson, against the widow, and 
 Hext the administrator, and the minor children of Garden, for the reco- 
 very of the property, real and personal, devised to his wife Sarah by her 
 father. That case resulted in a decree that the plaintiff's ward was 
 entitled to half of the negroes and other personal estate, and five-sixtlis 
 of the land. A partition accordingly took place, and in it the plaintifi"'s 
 intestate received of the personalty $190, and of the realty $280 more 
 than his share ; making an aggregate of $470, to be paid to Garden's 
 administrator and administratrix. From the Commissioner's report, it 
 seems that the Court decreed that there should be an account, by the
 
 218 SOUTH CAROLINA EQUITY REPORTS. [*279 
 
 defendants, of five-sixths of the rents of the hind, and one-half of the. 
 hire of the negroes, from January, 1821. This account, it seems, has 
 ♦ 9Rnl *"everbeen taken. In 1824 (July), Thomas N. Johnson came of 
 -' full age. In 1825 he received, from his guardian, his laud and 
 negroes, and died in the next year (1826), leaving the plaintiff, Margaret 
 Ann, his widow, but no children. Between his attaining to full age and 
 his death, as appeared from the evidence of Mrs. M'Leod, the daughter 
 of Brailsford, he often expressed himself to his guardian as satisfied with 
 his management of his estate, and offered to give hira a discharge. But 
 none was given, on account of the guardian's deferring it to another time. 
 The guardian never exibited his accounts to his ward. 
 
 Of the land of his first wife, of which he was entitled to possession 
 during life, and to one-sixth in fee, it is alleged by the plaintiffs, that 
 Alexander W. Garden committed waste. The Commissioner states, that 
 Dr. Garden cleared sixty acres of wood land in the centre of the tract, 
 which did not leave timber enough upor the rest of the land for fencing. 
 The damage thus done to the fee was estimated at $500. 
 
 After the death of Thomas N. Johnson, Robert Brailsford died intes- 
 tate and insolvent. Subsequently, Matthew James was appointed the 
 guardian of Theodore Brailsford, and demanded from Dr. Johnson, the 
 surviving executor of Mary Johnson, payment of the legacy of $1000, 
 left by Mrs. Johnson to him, and which had been paid to his father, Rob- 
 ert Brailsford, by Alexander W. Garden. The surviving executor having 
 in his hands, in a debt on the guardian, Mr. James, assets belonging to 
 the estate of Mary Johnson, much beyond the amount of the legacy and 
 interest claimed, paid it ; and credit has been allowed to him for the pay- 
 ment, in his accounts on his testator's estate : so that such payment 
 diminishes, pro tanto, the residuary estate which belongs, under the will, 
 to the plaintiffs' intestate. 
 
 On exceptions by both parties to the Commissioner's report, and on 
 certain points therein reserved, the Chancellor held : — As to the liability 
 of Robert Brailsford, as guardian of Thomas N. Johnson, jr., that he was 
 chargeable only with such amount as was proved to have been actually 
 received by him ; and as regards the estate of Mary Johnson, as it appeared 
 that the other executors received portions of it, he was not chargeable 
 with such sums, without proof of transfer to him, nor for the amount 
 unaccounted for ; that the evidence showed that he had accounted to the 
 entire satisfaction of his ward ; and although no formal release was given, 
 *9oi-n there *was such high evidence of the execution of the trust, that 
 -^ it was safer to rely on it, than upon the uncertain evidence on the 
 subject of the accounts. 
 
 In relation to the payment by Alexander W. Garden, of the legacy of 
 $1000, in the will of Mrs. Johnson, to Robert Brailsford, the father of 
 the legatee, he held that the subsequent ])ayment by Dr. Jos. Johnson, to 
 the guardian of the legatee, was justifiable and proper, and that from the 
 moment the legacy was paid by Dr. Johnson, the sum received by Brails- 
 ford ceased to be liable for it, and resulted to the estate to the use of 
 Thomas N. Johnson, jr.; Brailsford, being his guardian, became instantly 
 chargeable as such, with what he had received as executor ; and Garden, 
 as sole surety for the guardianship, became chargeable also. Brailsford 
 could not have accounted for this, the transaction having taken place after
 
 *281] CHARLESTON, MARCH, 1835. 219 
 
 his death ; and that Dr. Johnson was entitled to reimbursement prima- 
 rily against Brailsford, secondly against Garden. 
 
 In regard to the sale of the perishable articles of the estate of Mrs. 
 Johnsoif, the Chancellor held, that Alexander W. Garden was not liable 
 for the amount of such sale, as from the evidence he neither received the 
 money nor was guilty of any laches. 
 
 On the question of waste committed by Dr. Garden, he decreed as 
 follows : 
 
 " It is admitted, that at all events there should be deducted from the 
 sum assessed, an amount proportioned to Dr. Garden's si.xth in the fee ; 
 but the question remains, is his estate at all chargeable with waste for the 
 clearing of the sixty acres ? The clearing has impaired the value of the 
 land ; and according to the English doctrine, amounts to waste for which 
 the tenant for life would, as a trustee, be accountable, if by the terms of 
 his tenancy he was impeachable for waste. I have heard it suggested, 
 however, that the English doctrine must be modified in this State, and 
 that it is not waste here, for one entitled to the use, to clear so much wood 
 land, from year to year, as a prudent planter would clear, if he were enti- 
 tled to the fee. It appears to me this is a hasty conclusion. It is no 
 light thing to unsettle a legal doctrine. It is still worse to convert one 
 which is certain into one so vague as that which has been mentioned. 
 
 " There is a certain narrowness of mind, often passing for liberality, 
 *which can endure nothing fixed, either in doctrine or in practice, r:i<282 
 and which, instead of recognizing in settled rules the only seen- _ 
 rities which society can throw around the rights of the citizen, is ever 
 impatient under them, regarding them as harsh restraints upon the free 
 administration of justice. With such, every circumstance, however light, 
 limited, or tempory in its character, forms a reason for modifying doc- 
 trines or relaxing the rules of procedure. They trust that justice will l>e 
 more certainly attained by consulting the particular circumstances of the 
 times, the parties or the case, than by the general application of pre- 
 existing rules. But to say nothing of the obligation upon the judiciary 
 to apply as the law what the society have adopted as the law, regarding 
 it as the will of the society until altered by legislation, or of the perplex- 
 ity to which fluctuating decisions would doom the citizen, or of the oppor- 
 tunities which they would beget for arbitrary adjudications ; it may well 
 be asked, whether the rules of law, drawn as they are from a philosophi- 
 cal examination on all sides of the general interests of society, and tested 
 by experience, are not more likely to be just, than crude and hasty con- 
 clusions adopted on the spur of every occasion. My own solemn convic- 
 tion is, that law is justice — that it is the highest degree of it which man 
 can administer to man. I am persuaded that rules, upon which the citizens 
 can ground their expectations, are indispensable to the progress and 
 welfare of society, and cannot safely be relaxed, shaken orchanged, but 
 upon the ground of imperative necessity. In the consideration and a]ipli- 
 cation of legal doctrines, we should not confine ourselves to the present 
 occasion, or make a change of them to suit our present condition, which 
 will not suit hereafter. If we do, when the time comes for another judi- 
 cial modification (which, upon the same principle, must then l)e made,) 
 we shall subject the interest of the country to a dreadful revulsion. Whole 
 masses of men will then be deprived of rights, which, up to the moment
 
 220 SOUTH CAROLINA EQUITY REPORTS. [*282 
 
 of their being adjudicated out of tliera, tliey held under the law of the 
 land. Nothuig can Ijc more shocking. 
 
 " The doctrine of waste, as we have received it, will be indispensable, 
 when our State (at no distant day, it may be hoped,) shall become densely 
 peopled and highly im])roved. When our forests shall have given way, 
 as they are rai)idly giving way, to cultivated fields, who will then contend 
 *98^1 that it is not waste in one, entitled *raerely to a temporary use, to 
 -■ deteriorate aral)le land by improvident culture ; and as if that 
 wrong were not enough, to resort to the standing timber, further than is 
 necessary to the use of the land as he received it ? My own opinion is, 
 that what is waste in England, is waste here. That any treatment which 
 leaves open lauds less fertile, or changes their culture, or mars the woods 
 or structures, is waste. It by no means follows, however, that because 
 clearing is waste, the life devisee of wild lands is chargeable with waste 
 for clearing them. The devisee cannot, without clearing them, realize 
 the benefit which the devise implies ; therefore there is a further implica- 
 tion of exemption from impeachment for tiie clearing. If there had been 
 no open laud on the tract devised to Dr. Garden for life, so that he could 
 have derived no profit without clearing, I should have thought the charge 
 for waste was erroneous. But, if I correctly understand the facts, there 
 was a considerable extent of open land. The Commissioner has my 
 views, and can cast his report accordingly. If there was open land, the 
 charge of waste is sustained. If there was not, then Dr. Garden had a 
 right to clear. That right, however, was not without limits ; and this 
 strikes me to be the extent of his right : that where the fee is limited 
 over, after a life estate in wild lands, the life tenant's clearing must not 
 transcend that proportion to the whole land which the life estate bears to 
 the fee. In this case Dr. Garden's sixth ought to be added." 
 
 On appeal from the decree of Chancellor Johnston, the case was 
 elaborately argued by 31%'rady and Meniminger, for the plaintiffs, and 
 Toomer for the defendants ; but the arguments are so fully stated in the 
 opinion of the Appeal Court as to supersede the necessity of any report 
 of them. 
 
 O'Neall, J. [after making the foregoing statement of facts.] The 
 questions arising out of these facts, seem to rae to be the following, viz: 
 
 1. Ought Robert Brailsford to be charged as guardian with the income 
 derived from the estate of Tlios. N. Johnson, (which was assigned to him 
 as his part of the estate of his father, from the time of his appontment as 
 guardian ? 
 
 2. Ought he to be charged as guardian, with the income of Mary 
 Johnson's estate from 1819. 
 
 *2841 *^' ''^^ ^^® parol discharge of Robert Brailsford by his ward, 
 just after he attained to maturity without an account, a sufficient 
 disqharge in law to bar the account now claimed ? 
 
 4. Is Alex. W. Garden, the security of Robert Brailsford, the 
 guardian, liable to the extent of the penalty of his bond, for the arrears 
 of the said Robert on account of his said guardianship ? 
 
 5 Is Alex. W. Garden liable as executor of Mary Johnson, to account 
 to the plaintiffs for the $1000 with interest thereon, paid to Robert 
 Brailsford, on account of the legacy to his sou ?
 
 *284] CHARLESTON, MARCH, 1835. 221 
 
 6. Is Alex. W. Garden, as executor, accountable for the amount of 
 the sale of the perishable articles sold as Mary Johnson's estate, with the 
 interest thereon ? 
 
 7. Was waste committed by Alex. W. Garden, and if so, arc the 
 plaintilfs entitled to an account for the same ? 
 
 8. Are the defendants in this case liable to account for the rent and 
 hire directed to be accounted for in the former decree ? 
 
 Each of these questions have been most elaborately discussed, and have 
 been maturely considered by the Court. The able and zealous counsel 
 for the defendants has made us feel deeply for the orphan, who, from his 
 statement, will be stripped of every thing by our decision : but it is not 
 for us to give way to the feelings of men — our duty is a stern and inex- 
 orable one, to administer the law, which, as the Chancellor said in this 
 cause, is justice. The several questions will, as briefly as possible, be 
 disposed of in the order in which they have been set down. 
 
 1. There can be no question that the guardian, Robert Brailsford, is 
 alone accountable for the income of that part of the estate of Thomas N, 
 Johnson the younger, derived from his father ; for as guardian, he seems 
 iDy his own return to have been in the possession of the corpus of the 
 estate : but in law, after the division between Thos. N. Johnson, and 
 Sarah, and after a guardian had been appointed for the minor or minors, 
 the executors were no longer accountable for the future income of the 
 estate. The guardian was alone entitled to the possession of his ward's 
 estate, and must, as a matter of course, be regarded as in the receipt of 
 the income. If Dr. Johnson received a part of the income, it must have 
 been as the agent of the guardian : for he had no other right to receive 
 it. It is probable that when the accounts of the receipts and expendi- 
 tures of the guardian, and of Dr. Johnson, regarded as his agent in this 
 respect, come to be examined, that all the supposed ^hardships of r^oori 
 this part of the case will vanish. But be that however as it may, •- 
 Brailsford must account for the income of the estate, and show how it 
 has been expended, and must be held responsible for any balance which 
 may be found on the foot of his account. 
 
 2. There is perhaps a little more difficulty in the question, as to his 
 liability to account as guardian for the income of Mary Johnson's estate. 
 He, Dr. Johnson, and Garden, were the executors of her will. Garden 
 acted, as appears from the papers, for only a single year. The plantation 
 and negroes were in the immediate vicinity of Brailsford ; and it seems 
 to be pretty well established from the defendants' own showing, that he 
 had the entire management of all Thos. N. Johnson's estates, whether 
 derived from his father or mother, which were in the country. These 
 facts constitute such a reasonable showing, as would charge Brailsford 
 with an account for the income, as executor, or as guardian. He must, 
 however, by operation of law, account in the latter character ; for what- 
 ever funds he had in his hands as executor for Thos. N. Johnson, by 
 operation of law, were transferred to his account as guardian.. In ad- 
 dition to the view which I have suggested, it may be added, that 
 executors are only jointly liable, so far as they concur in an act done in 
 the administration of their testator's estates. Each are primarily 
 regarded as separately liable : and as between (Jiemselves, this is always 
 the rule.— Motte v. Shult and Motte, 1 Hill's Ch. Rep. 14G. It will be
 
 222 SOUTH CAROLINA EQUITY REPORTS. [*285 
 
 observed, that Dr. Garden has accounted for his receipts of the income 
 during the single year, in which he acted as executor. Dr. Johnson, in 
 this case has filed his account, which is satisfactory to the parties. Mr. 
 Brailsford has never exhibited any account of iiis receipts, unless it may 
 be embraced in the account from 1818 to 1824, found among the papers 
 furnished to me. The fair presumption from these circumstances is, that 
 he is alone accountable for that part of the income unaccounted for. It 
 is plain, that the income exceeds the sum received by the other executors. 
 It is conceded that in this respect they have fairly accounted : the balance 
 unaccounted for, may be fairly charged to him who, by his default in not 
 accounting, is legally presumed to be in the wrong. Add to these con- 
 siderations the fact, that as guardian, he ought by law, at the expiration 
 of one year after his testator's death, to have compelled the possession of 
 *98fi1 ^^^ ward's estate to have been *delivered to him, and his liability 
 -' to the account is sufficiently made out. 
 
 3. I am perfectly satisfied that the verbal discharge cannot operate. 
 The only mode in which it could have effect, would be as an admission 
 that an account had taken place between the guardian and the ward, and 
 that the former had paid to the latter the balance due. But nothing 
 of this kind did take place ; the guardian, Brailsford, as appears in this 
 cause, had not made out his accounts until after the death of Thos. JS". 
 Johnson. He did not even pretend at the time spoken of by Mrs. 
 M'Leod, the witness, to make any statement of the accounts of his guar- 
 dianship with his ward. " He," (Mr. Brailsford) said " he did not care 
 much about it, (the discharge) as he had delivered up all the property, and 
 did not have any money concerns with the estate, — that part was conducted 
 by his co-guardian, Dr. Joseph Johnson, tvho would have to account 
 for the funds.''^ This testimony of the witness puts the discharge out 
 of all question ; for it shows that there was not only no accounting, but 
 also that the guardian had deceived the ward in inducing him to believe 
 that he had n© funds belonging to him in his hands. 
 
 But, if a regular release had been executed, it could not have been 
 supported. A guardian dealing with his ward, just after he has arrived 
 at full age, and obtaining any beneficial contract from him, or a release 
 of the ward's rights, must, in order to have it sustained, show its fairness. 
 In this case, the supposed discharge was probably in less than a year 
 after the ward attained to full age, and at or about the time that he re- 
 ceived the possession of his estate : and there is not only no proof of 
 fairness in the transaction, but there is abundant reason to believe, that 
 whatever Mr. Johnson did say, was said in ignorance of his rights. The 
 case of Hylton v. Hylton, 2 Ves. Sen. 547, is a clear "and direct 
 authority against the allowance of the release to the guardian, even if it 
 had been regularly executed. 
 
 _ In that case, " The plaintiff had considerable gifts or provisions left to 
 him by the will of Philippa Downs, his aunt and Charles Palmer, his 
 half brother. The defendant, his uncle, was acting executor and trustee 
 in both those wills, and also acted as guardian to him during the minority, 
 having neither father or mother. Coming of age in April, 1746, he, in 
 October, 1748, entered into a transaction with his uncle, whereby he 
 *2871 Si'anted to him an annuity *of £60, gave him a general release, 
 and two written discharges, all signed the same date with the 
 grant upon his delivering up several papers " " The bill was filed to set
 
 *287] CHARLESTON, MARCH, 1835. 223 
 
 aside the grant of the annuity upon the general principles of being made 
 just after coming of age without being thoroughly informed," and Lord 
 Chancellor Hardwicke decreed accordingly. In the conclusion of his 
 opinion, the Lord Chancellor says, " nor is there any evidence of an 
 account made up of the personal estate proved to have come to the 
 defendant's hands. Certainly, if any thing could make such a trans- 
 action supportable, it must be where there Kas a 7'eal and fair account ; 
 of which there is no evidence : yet a general release is given upon 
 delivering up several papers and vouchers as they are called." 
 
 It will be observed that the Chancellor says in that case, that the only 
 circumstance which could sustain the grant of the annuity, was "a real 
 and fair account ; the same rule governs a release, which is in point of 
 fact a gift to the guardian of his arrears ; and unless the ward sees most 
 clearly what he is about to do, it cannot be supported. In the case 
 under consideration, that knowledge is wanting, and in every point of 
 view, the defence attempted to be set up in this respect must fail. 
 
 4. That the security of the guardian is liable for the default of his 
 principal to the full amount of the penalty of the bond, is, I think, too 
 plain a proposition to require much illustration. The appointment of a 
 guardian of the person and estate of a minor, is not, as was supposed by 
 my friend, the counsel for the defendants, limited to the property set out 
 in the petition, praying that the appointment should be made. The Court 
 may, it is true, so limit it ; but unless the appointment is restricted and 
 special in its terms, it e.x;tends to all the property which the minor may 
 then or afterwards possess. It is hence that the bond is always taken in 
 a larger sum than the nett value of the ward's estate at the time the 
 appointment is made. There might have been some difficulty about the 
 jurisdiction of the Court, to decree against the security : but, as in the 
 case of M'Dowall v. Caldwell, 2 M'C. C. R. 43, that question was not 
 raised by the defendants, and the Court will at once, without any circuity 
 of action, hold the representatives of Dr. Garden liable, so far as they may 
 have assets, real or personal, and to the extent of the penalty of the Ijoud, 
 for the default of the guardian, Robert Brailsford. 
 
 5. Ithinkthat Alex. W.Garden is liable as executor to the *plain- r^^oo 
 tiifs' intestate for the SlOoO and interest thereon, paid by him to ^ *" 
 Robert Brailsford for his son's legacy. The truth of this conclusion 
 depends upon showing that this payment was an illegal one, and that the 
 payment made by Dr. Joseph Johnson, the surviving executor, out of the 
 residuary estate, was proper, and entitles the plaintiffs' intestate to the 
 account against Garden, the executor. It was contended that the pay- 
 ment to Robert Brailsford, as the father of the legatees, was good. But 
 this is wholly untenable. The point was very fully considered and 
 adjudged by Chancellor Kent, in the case of Genet v. Tallmadge, 1 John. 
 C. R. 3. . He held, after a general review of the decided cases, that a 
 father, as such, had no right to receive the legacy of his child. To attempt 
 to add any thing to his conclusive array of authorities, would be an idle 
 consumption of time. It was next urged, that although the payment to 
 him, as father, might not be good, yet, that as co-executor, he had the 
 right to receive the legacy, and that his receipt of the money discharged 
 Garden. I have already had occasion to say, that primarily executors 
 are regarded as separately liable ; but that, if they concur in any act
 
 224 SOUTH CAROLINA EQUITY REPORTS. [*288 
 
 touching their testator's estate, that they are jointly liable. This is, I 
 thinli, a wise rule in both its parts — the latter is only subject to objection 
 on the present occasion, and it is only necessary that it should now be 
 vindicated. If it were the case that executors when they concurred in an 
 act were not required to account for it jointly, there could be no safety to 
 an estate. Responsibility might be shifted at pleasure by transferring 
 the funds : and a solvent executor might release himself from liability, by 
 simply producing the receipt of an insolvent co-executor. For the sake 
 of some pecuniary advantage or other cause, an executor might desire to 
 give up his trust; it has been held that the Courts cannot release him ; 
 and yet, by simply turning over the funds to his co-executor, he might be 
 released, if his liability ceased as soon as he parted with them to his 
 co-executor. If he choses to turn over a fund in his hands to his co ex- 
 ecutor, he is generally responsible for its administration ; for he thus 
 makes the other his agent for its application. Both are liable to their 
 cestui que trusts, for both have had the actual control of the fund, and 
 both have concurred that one should manage it. If it is a well settled 
 rule of law, " that where by an act done by one executor, any part of the 
 estate comes to the hands of his co-executor, the former will be ansv/er- 
 ^;goQ-] able for the latter, in the same manner as he would have *been for 
 " -• a stranger whom he enabled to receive." Toller's Law of Ex'ors, 
 484. It is our duty to give it effect in this case, by holding Garden to 
 be liable for the $1000 paid to Brailsford for his son's legacy and by him 
 not paid over. Without going through all the cases bearing upon this 
 position, it will be sufficient to cite and examine some of the leading 
 cases. In Grose v. Smith and Munt, 7 East. 246, the defendants were 
 co-executors of Grierson, who was indebted by bond to the plaintiffs' 
 intestate. Smith having £400 of the assets of his testator, remitted the 
 same to Munt, for the purpose of being paid over to the payment of 
 Grierson's debt ; he however paid it to a simple contract debt due by 
 Grierson to hitnself, and subsequently became bankrupt. The question 
 was, whether Smith was liable for the misapplication of the £400, and 
 it was held that he was. The only possible distinction between that case 
 and the one under consideration is, that there the question was made by a 
 creditor plaintifi", and here by the residuary legatee. I am persuaded 
 from the best examination I have been able to give to the subject, there 
 is no such just distinction ; but that will be further considered in the 
 sequel. In the case of Crosse v. Smith, Lord Ellenborough's concluding 
 words state very fully and forcibly the legal conclusion, making out almost 
 in terms the rule which I have stated from Toller. He said, " in con- 
 formity therefore to the rules of law as handed down to us in respect to 
 executors, we are obliged to pronounce that the defendant, Smith, having 
 once received and fully had under his control assets of the testator appli- 
 cable to the payment of this bond debt, was responsible for the applica- 
 tion thereof to that purpose, and such application having been disappointed 
 by the misconduct of his co-executor, whom he employed to make the 
 payment in question, he is liable for the consequences of such misconduct, 
 as much as if the misapplicatien had been made by any other agent of a 
 less accredited and inferior description." It may however be objected to 
 that case, that it was at law, and that in equity, a different rule prevails : 
 but this is a mistake ; equity is bound as much by legal rules where they 
 apply to the case as a Court of law. Relief may, and often is, given in
 
 *289] CHARLESTON, MARCH, 1835. 225 
 
 equity where it cannot be at law, owing to the difference in the modes of 
 proceeding, and the clTect of the judgments of the two Courts : at law, 
 the judgment gives effect to a previously existing legal right : in equity, 
 the decree creates a legal right out of a contract or trust. But it will be 
 seen on ^looking to Lord Ellenborough's judgment, that he founds r;xgnn 
 it mainly upon cases decided in the Chancery Court, and it is '- " 
 hence apparent that the rule is the same in both Courts. 
 
 In Sadler v. Hobbs, 2 Br. C. C. 114, the bill was filed by a residuary 
 legatee for his legacy, and in the report on the accounts, it appeared that 
 Davies had joined with Reeve, his co-executor, in drawing two bills of 
 exchange, amounting together to £7000, on the house of Trueman, Reeve 
 & Co., payable to Devonshire & Reeve, as he supposed, in satisfaction of 
 the testator's debt to them to that amount ; but he was in this respect 
 mistaken, the debt being only £3000, so that the executors had paid 
 £4000 too much. Reeve, the executor, who received the money under 
 the bills of exchange, afterwards became bankrupt. The question for the 
 Court was, whether the joinder of Davies in the bills of exchange, with- 
 out the receipt of the money, made him answerable to the plaintiff for it. 
 Lord Chancellor Thurlow ruled that he was ; and stated the rule to be, 
 " that where, by any act or any agreement of the one party, money gets 
 into the hands of his companion, whether a co-trustee or co-executor, they 
 shall be both answerable." In a note to that case (Note 1) the editor 
 remarks, that " Westley v. Clarke (before Lord Northington, and lately 
 reported in 1 Eden, 357) mentioned in the case of Sadler v. Hobbs, with 
 some disapprobation, (whether rightly determined as to its peculiar cir- 
 cumstances, 4 Ves. 609,) seems to have given occasion to relax the sound 
 and intelligible rule which previously prevailed, viz. : that where either 
 executors or trustees (and executors more especially) joined in any act 
 which as to them loas U7ineceiisary, and a loss happened, the parties thus 
 unnecessarily concurring should be held responsible, although none of 
 the funds came into their hands : that rule seems to he noio restorecV^ — 
 and he refers to a host of authorities in support of his assertions. 
 Although in the words of this note, and of Lord Thurlow in the case of 
 Sadler v. Hobbs, there is some difference from those employed by Toller, 
 in stating the rule as I have done, yet the difference is merely verbal : 
 the rule is identical in substance. For the meaning is clear throughout, 
 that the concurrence to charge an executor for the act of a co-executor, 
 must be voluntary and not the result of legal necessity. The case of 
 Sadler v. Hobbs and that under consideration are almost identical.^ That 
 case as well as this was in equity, and on a bill filed by the residuary 
 legatee : the concurrence there, was not greater than it is ^ here ; it 
 *was a payment to a co-executor as one of a firm, supposing him r*29i 
 entitled to receive it on account of a debt, when in fact he received 
 more than the firm was entitled to : so in this case, it was a payment to a 
 co-executor, supposing him entitled to receive it for his son's legacy. 
 
 The case of Joy v. Campl^ell, 1 Sch. & Lef. 328, maintains the same 
 position. At page 341, Lord Chancellor Rcdcsdale states the rule with 
 his accustomed fulness and clearness. " The distinction," he says, " seems 
 to be this with respect to a mere signing : that if a receipt be given for the 
 mere purposes of form, then the signing icill not charge the person not 
 7-eceiving ; but if it be given under circumstances purporting that the 
 money, though not actually received by both executors, was under the
 
 226 SOUTH CAROLINA EQUITY REPORTS. [*291 
 
 control of both, such a receipt shall charge ; and the true question in all 
 those cases seems to have been whether the money xvas under the control 
 of both executors : if it was so considered by the person paying the 
 money, the joining in the receipts by the executor, who did not actually 
 receive it, amounted to a direction tnimy his executor, for it could have no 
 other meaning; he became responsible for the aj^ylication of the money 
 just as if he had received it. But this does not apply to what is done in the 
 of the discharge of a necessary duty of the executor." This clear view 
 rule is in exact accordance with all the previous authorities ; and carries 
 out and enforces the explanations and application which I have given or 
 made. Test the case before us by Lord Chancellor Redesdale's criterion, 
 " whether the money was under the control of both executors," and it 
 will be seen that Dr. Garden's liability is fixed beyond all doubt : he had 
 the control of the money until he paid it over to his co-executor on a 
 mistaken view of his power to receive it for his son, and it follows, that 
 having had the control he is liable for it. It cannot be necessary to mul- 
 tiply authorities to establish a rule which is now conceded by all the law 
 and equity writers to be settled law. But it is said that there is a dis- 
 tinction in the application between a creditor plaintiff and a legatee 
 plaintiff: as I have already said, that distinction cannot be maintained. 
 The case of Sadler v. Hobbs, which I have already stated and commented 
 on, shows that the application of the rule is allowed even in the case of 
 a residuary legatee plaintiif, and the Lord Chancellor, in that case, 
 speaking of the distinction in the reasoning of Lord Chancellor Harcourt, 
 ^QQo-i ill the case of Churchill v. Hobson, 1 P. Wms. *241, calls it (as 
 ^ J it deserves to be called) an odd distinction. But as Chancellor 
 Harcourt's remark in Churchill v. Hobson was a mere dictum and not 
 the point ruled, it could not have created the doubt which does seem to 
 have existed on the subject. It is referrable more probably to the case 
 of Westley t'. Clarke, before Lord Northington, 1 Eden, 357 ; but although 
 it had the effect to relax the old rule, yet, as the editor observes in his 
 note to the case of Saddler v. Hobbs, "that rule seems now to be 
 restored." The case of Bacon v. Bacon, 5 Ves. 331, is no authority for 
 the distinction between creditors and legatees as to the liability of co- 
 executors; there i\\Q payment to the unqualified co-executor was sus- 
 tained, not on account of his chai'acter as executor, but because he was 
 the testator's attorney, and the payment to him was in the regular course 
 of business. I am not prepared to say that a case decided under its 
 special circumstances, (as that case was,) is ever authority for any 
 purpose ; but it is clear, without utterly condemning it, that it proves 
 nothing in this case. In Doyle v. Blake, 2 Sch. & Lef 229, the bill 
 was by the legatees against the solvent and surviving executors who had 
 renounced in favor of the now deceased executor, Horan, who afterwards 
 obtained administration cum testamento annexo, received and wasted 
 the funds and became insolvent; it was ruled that they were liable for his 
 acts. In the case, Lord Redesdale says, " Legatees are bound by the 
 terms of the will ; creditors are not so ; and therefore in many cases 
 executors would be discharged as against legatees, though not as against 
 creditors." 
 
 This, regarded as an abstract proposition, is a startling one ; but when 
 explained by the subject-matter of which the Lord Chancellor was speak- 
 ing, is plainly right. The testator, in the case then before him, had
 
 *2D2] CHARLESTON, MARCH, 1835. 227 
 
 directed all the funds to be deposited with the co-executor, Horan, as 
 trustee for the legatees. It is clear, beyond all doubt, that sucli a pay- 
 ment to him under the will would have been good against the legatees: 
 for as between them and the other executors, Horan would have been, 
 under the will, the agent of the legatees in the receipt of the mouey, and 
 they would have been bound ; but creditors would not have been, for 
 he had no right to receive as trustee until the debts were paid. With 
 this explanation, the case is consistent with itself and all the previous 
 cases. For in the point ruled by the decision of the case, (as I have 
 already stated it,) and the Lord Chancellor's reasoning *at 242, r:;:293 
 it is a direct authority in support of the general and old rule. L 
 But, as was well said in the argument, the case of Langford v. Gascoyne, 
 11 Ves. 333, uproots the distinction supposed to exist between creditors 
 and legatees. That was a bill by a widow claiming to be a legatee for 
 life, and the general residuary legatees. There were three executors, 
 Gascoyne, Lambert and Spurrell : the day after the testator's funeral, the 
 three executors met at his house. His widow brought out to them a bag 
 of money, and on being advised not to trust it to Gascoyne, she delivered 
 it to Spurrell in the presence of the other two. He counted it and handed 
 it to Gascoyne. It was held by the Master of the Rolls, Sir William 
 Grant, that Spurrell was liable. He says, " The rule in. all the cases is, 
 that if an executor does any act by which money gets into the possession 
 of another executor, the former is equally answerable with the other ; not 
 where an executor is merely passive, by not obstructing the other in 
 receiving it." In the case of Monell, et al., v. Monell, 5 J. C. R. 283-8, 
 Chancellor Kent, speaking of this subject, said, "a rule once prevailed in 
 England which was recognised in Pennsylvania, (1 Dallas, 311,) that 
 either of two executors who had executed receipts for assets, was liable to 
 the legatee for the amount only actually received by him. But that rule 
 is ej'ploded, and the doctrine now established at law and in equity is, 
 that if assets come to the hands of one executor only, but both join in 
 a receipt for them, both are equally liable to legatees and creditors. 
 
 In this State no distinction has ever been made between creditors and 
 legatees. In Evans v. Evans, 1 Eq. Rep. 520, Chancellor Rutledge, 
 speaking of the liability of executors for joint acts, although only one 
 received the money, said, "As they were all consenting and joined in the 
 sale, they must all be responsible for the debts, but not one for the sejm- 
 rate act of the other.''' In Lenoir v. Winn, 4 Eq. Rep. 65, and in another 
 case in the same book, 92, the rule is loosely stated, but most obviously 
 in reference to it as stated by Chancellor Rutledge in the case of Evans 
 V. Evans, and in the English authorities. It is, I think, therefore clear 
 beyond all doubt from this array of authorities, that in a suit by a legatee 
 as well as a creditor, both at law and in equity, "that where by an act 
 done by one executor, any part of the estate comes to the hands of his 
 co-executor, the former will be answerable for the latter, iu *the rj^^Qi 
 same manner as he would have been for a stranger whom he had ^ 
 enabled to receive it." 
 
 But it was contended that admitting this to be true, yet that the plain- 
 tiifs were not entitled to recover, because the executor has misapplied, 
 and therefore wasted the fund, and that their intestate having received 
 his residuary legacy, could not have been called upon by the legatee, 
 Theodore Brailsford, to pay his legacy : and that therefore the payment,
 
 228 SOUTH CAROLINA EQUITY REPORTS. [*294 
 
 by Dr. Johnson, was altogether voluntary ; and the case of Lupton v. 
 Lupton, 2 J. C. R. 614-627, was cited in support of this position. It 
 does, beyond all doubt, prove that where the executor has wasted the 
 assets, that a legatee who has been paid must refund to a creditor, but 
 cannot be compelled to contribute to make up a legacy to a co-legatee. 
 But the authority has no application to this case. A part of the assets 
 of Mary Johnson, deceased, were unadrainistered and in the hands of the 
 surviving executor at the time the guardian of young Brailsford demanded 
 payment. He was legally liable to meet the demand. For there had 
 been no sufficient legal payment to the legatee ; and having assets of 
 the estate in his hands, equal to and beyond the amount claimed, he had 
 no cause to allege why he should not pay the legacy and the interest 
 due thereon. The plaintiffs could not object to the allowance of this 
 payment in the accounts of the surviving executor, and hence they had a 
 right to call on the other executor. Garden, for the amount he had mis- 
 applied. It was a part of the estate of Mary Johnson, and in legal con- 
 templation in the hands of Garden. He is, therefore, plainly accountable 
 to the plaintiffs. Sadler v. Hobbs, 2 B. C. C. 114. The executor. 
 Garden, being accountable for the $1000 paid by him to Robert Brails- 
 ford for his legacy, I think he must account for it with interest from the 
 time he paid it, to Brailsford. The legacy and interest was properly paid 
 by the surviving executor. For there can be no pretence that the interest, 
 wliile it was in the father's hands, was applied to the maintenance of his 
 son. The father made no such charge. Garden cannot make it for 
 him. But if this had been contended for by the representatives of the 
 father, it would not have been sustained. For so long as the father was 
 of sufficient ability to maintain his child, it was his duty to do so. Myers 
 I). Myers, 2 M'C. C. R. 264. There is no proof or assertion that there 
 was any inability to do so. His insolvency probably developed itself 
 after his death. 
 
 *'>QFi1 *^* Grarden's liability to account for the amount of the sale of 
 "^ J the perishable articles, with the interest thereon, results from the 
 view which I have taken of his liabilty to account for the $1000. In 
 this respect, however, there are some additional circumstances making it 
 still plainer. He applied for and obtained the order for sale, and returned 
 the sale bill. Each of these acts he did as executor without even 
 noticing any other' person. They cast upon him the burthen of account- 
 ing for the proceeds of the sale. It was no answer to say that a part or 
 the whole thereof had been received by his co-executor, unless he could 
 also have shown that the co-executor received it against his will. This, 
 however, is not pretended, and it follows that Garden's liability is on the 
 clearest principles made out. 
 
 7. I think there is no doubt that the late Dr. Garden is liable to the 
 account for waste, both as tenant for life of the whole, and as tenant in 
 common of the remainder in fee. This is not an application to stay 
 waste, but for an account of whatever may have been committed. In 
 general, it may be admitted that one tenant in common cannot have an 
 injunction against his co-tenant. But even between them, under special 
 circumstances, the Court might grant an injunction. As where the 
 waste was destructive to the estate, and not within the usual and legiti- 
 mate enjoyment. Hole u. Thomas, 7 Ves. 589; Twort d. Twort, 16 Ves. 
 12S. And, as in the case of Hawley v. Clowes, 2 J. C. R. 122, where the
 
 *295] CHARLESTON, MARCH, 1835. 229 
 
 tenant in common in possession was cutting down tlic timber and tlireaten- 
 ing to jicrsevere. This last case carries the proposition further than I 
 should be willing to sanction : it ought, I think, to l)e shown that the 
 cutting down the timber was not necessary to the enjoyment of the estate, 
 and would (jreatly prejudice the interest of the co-tenant. But without 
 dwelling further on a view of this part of the case not necessary to the 
 decision of the point now in dispute, I will proceed to state the grounds 
 upon which the defendant is liable to an account for waste. 
 
 In several cases in this State it has been held that a tenant in common 
 may use the estate to the extent of his interest in it : and in the case of 
 Kerr and wife, et al., v. Robertson, it was held (by my bretliren) that for 
 woodland cut down and cultivated by one tenant in common, he was not 
 liable to account to his co-tenant for rent, but that the remedy of the 
 latter would be for waste. In Backler v. Farrow, ante, 111, (at the last 
 term in Columbia,) it was held that *co-tenants who had cut down r^^nrt 
 and worn out a portion of the land much beyond their shares, ^ "" 
 were liable in equity to account for the waste, and the Commissioner 
 having reported a sum certain as to the value of the waste committed, the ' 
 defendants were ordered to pay it. These cases sufficiently show the 
 % right of the plaintiffs to come here against the representatives of their 
 intestate's co-tenant for an account for the waste by him committed. It 
 only remains to inquire what is waste ? and is it made out here ? Accord- 
 ing to the English authorities, cutting down woodland, interspersed as 
 our forests universally are with timber trees, would be waste. But there 
 has been some modification of this rule in this State. Several cases have 
 been decided on the subject — two I recollect pretty well, and will, from 
 memory, (as we have no reports of them,) state the princii)k'S by which 
 they were decided. In Milam v. Byrd and wife, Mrs. Byrd was tenant 
 for life of her former husband's estate, consisting of a plantation and 
 negroes. It was alleged that her second husband had brought his own 
 negroes on the plantation, and with thorn and the negroes of his wife that 
 he was cutting down large l)odies of the woodland. He was restrained 
 from cutting down the land for the employment of his own negroes ; but 
 he and his wife were allowed, with her negroes, to cut down as much land 
 as a prudent man, the owner of the fee, would do in a course of good 
 husbandry. It was made the subject of reference to ascertain the present 
 or future quantity to be cleared. In Nuckoll's r. M'lvie, a large tract of 
 land, principally in the woods, was devised to Mrs M'Kie for life, and 
 after her death to the plaintiffs. She not only cleared a i)ortiou herself, 
 but settled many tenants on different parts of the land. Her tenants were 
 restrained from clearing the land, but she was permitted to cut down and 
 cultivate the land for her own use and support 
 
 These cases leave the rule perhaps still too vague, and do not reach 
 the case of a tenant in common. But when taken in connection with the 
 cases fixing the right of a tenant in common to the use of the estate to 
 the extent of his interest and his liability to account for waste committed, 
 I think we may deduce the rule to be — that where a tenant in common, 
 by cutting down and clearing woodland, beyond his interest, has greatly 
 injured the interest of his co-tenant, he would be liable for waste. And 
 so if the *tenant for life cuts down more woodland than is neces- ri^na^ 
 sary for the enjoyment of his estate, and has injured the remainder, L 
 he would be guilty of waste, and liable to the account. It is the ultimate 
 \^0L. 1.— 38
 
 230 SOUTH CAROLINA EQUITY REPORTS. [*2''7 
 
 iiiinry done to the rights of the plaintiffs, as co-tenants or in remaindev, 
 wiiich gives them the right to complain. For if the clearing of the land 
 had improved its value to the co-tenant or remainder-man, it could not 
 be pretended that still the co-tenant, or tenant for life, would be liable 
 for waste. 
 
 It now remains to be considered whether, according to this rule, Dr. 
 Garden was guilty of waste. Under the clauses of the will of Thomas 
 N. Johnson, sen., deceased, already cited, he had a life estate in the land 
 of his wife, Sarah, and according to the construction placed upon the 
 same by the Court of Equity, he was also entitled to one-sixth in fee. 
 There are no words in the will which would exempt him from the im- 
 peachment of waste. If it should turn out that there was no cleared land 
 on the plantation when Dr. Garden went into possession, then it is 
 probable that he did not clear more than was necessary to the enjoyment 
 of his life interest, and did not exceed his interest as tenant in common, 
 ]^ut, as is most probable from the testimony, there was a cleared planta- 
 tion sufficient for the employment of the slaves of his wife, in which he 
 also had an estate for life, then it is clear that the clearing of sixty acres 
 of woodland in the centre of the tract, not leaving timber enough upon 
 the whole land to repair the plantation, and which the witnesses, (Nelson 
 and Havin,) say was an injury of $500, would be waste. But as it may 
 be that the Commissioner did not ascertain the precise injury done to the 
 remainder of five-sixths in fee by the clearing at the time the life estate 
 fell in, the report will be left open for further examination on this point, 
 under the rules laid down in this opinion. 
 
 8. Under the former decree, the plaintiffs are plainly entitled to the 
 account of five-sixths of the rent of the land, and half of the hire of the 
 negroes. For this bill, although not a bill of reviver, sets out the former 
 decree, and with the immense mass of other matter brought to the view 
 of the Court, claims that it should be executed. This was, I think, 
 proper where the bill embraced new matter : if it had barely proceeded 
 on the former decree, then that case ought to have been revived. In 
 taking the account under the former decree, the Commissioner must 
 observe that Hext and Mrs. Miles, the adult defendants, are alone liable 
 *9qQi t^ ^^6 *charged therein. They were in possession of the property, 
 -^ and they, not the minor, are properly chargeable. 
 
 In making up the accounts against Dr. Garden, the Commissioner 
 will deduct, from the eventual balance against him, the amount of $470, 
 which his estate was entitled to receive from Thomas N. Johnson, the 
 younger, under the decree confirming the partition of the land and per- 
 sonal estate of his first wife, Sarah, with interest from the date of the 
 decree of confirmation. 
 
 It is ordered and decreed that Chancellor Johnston's decree be modi- 
 fied according to the views expressed in this opinion ; and that the case 
 be remanded to the Commissioner, with instructions to restate the 
 accounts according to the principles and directions herein contained : 
 and that the defendants may, by other and additional testimony, dis- 
 charge themselves ; to which the plaintifts are permitted to reply : and 
 where necessary under this opinion, testimony in explanation of facts of 
 the case which are doubtful upon the former proof, may be received by 
 the Conimi.ssioner. Let the costs be paid out of the estate of Garden. 
 
 Johnson, J., and Harper, J., concurred.
 
 CASES IN CHANCEUY 
 
 ARGUED AND DETERMINED IN THE 
 
 COURT OF APPEALS OF SOUTH CAROLINA. 
 
 Columbia — P^ag, anb |une, 1835. 
 
 JUDGES PRESENT. 
 
 Hon. DAVID JOHNSON, President. 
 Hon. J. B. O'NEALL. I Hon. WILLIAM HARPER. 
 
 Langdon Cheves, Ex'or of Anne Lovell, and M. E. Ciieves, his 
 Wife, V. Edward Richardson, Joseph Dallas, and otliers. 
 
 Testatrix devised to her grand-niece, viz: "one thousand acres of land, to be taken 
 off my plantation called Good Hope, to be run off conveniently adjoining the place 
 called Cave Hall late the property of W. C, which said plantation, called Cave 
 Hall, shall be purchased and paid for out of my estate, and shall be given to my 
 said grand niece, making in all fourteen hundred acres:" — ILId, that this was 
 a devise of the whole plantation called Cave Hall although coutaiuing one thou- 
 sand five hundred and fifty acres, or its equivalent; and the executor was ordered 
 to make the purchase for the benefit of the devisee. [*3G2] 
 
 This bill was filed for the purpose of partition, distribution and settle- 
 ment of the estate of Mrs. Anne Lovell, late of St. Matthew's Parish, 
 who, by certain settlements entered into between her husband and trustees 
 on her part, was authorized by deed or will, to dispose of her estate. 
 The only point in dispute was the construction to be given to the follow- 
 ing clause : — 
 
 "Item. — I give and bequeath, limit and appoint to my grand-niece, 
 Rachel Susan Bee, one thousand acres of land to be taken off ray lower 
 plantation, which is called Good Hope, and purchased of Joseph Mani- 
 gault, situate on the half-way swamp The said thousand acres to be 
 run off conveniently adjoining the place called Cave Hall, late the pro- 
 perty of William Caldwell, which said plantation, called Cave HaH, shall 
 be purchased and paid for out of my estate, and shall be given to Rachael 
 Susan Bee, my grand *niece aforesaid, making in all, fourteen t^^qq 
 hundred acres ; provided the said Rachael Susan Bee be living at 
 the time of my death." 
 
 Rachael Susan Bee survived the testatrix ; and it was referred to the 
 Commissioner to report whether the said plantation called Cave Hall, 
 could be purchased, and at what price — what quantity of acres it con- 
 tained, whether the proprietor would sell four hundred acres thereof, and 
 in case he will not, to report the value of four hundred acres ; and which
 
 232 SOUTH CAROLINA EQUITY REPORTS. [*3()0 
 
 would be more advantageous to the devisee, (in case such a construction 
 should be given to the will,) the specific purchase of four hundred acres, 
 part of Cave Hall, or the payment by the executor of the value thereof. 
 
 The Commissioner reported, " That Cave Hall contained one thousand 
 five hundred and fifty acres, of which seven hundred acres are supposed 
 to be highland, and the remainder swamp. — (Santee.) That the price 
 demanded for the whole tract, by Mr. Paul Warley, the owner, is two 
 dollars per acre, or three thousand one hundred, dollars, which the parties 
 agree in thinking not an unreasonable price under all the circumstances 
 of the case : and the Commissioner was of the opinion, that if the pro- 
 prieter would divide the tract, and sell four hundred acres thereof, one 
 thousand dollars would be a reasonable price for the same : but the pro- 
 prietor refused to do so, and this refusal, the Commissioner supposes, 
 makes it unnecessary to consider the last point referred, viz,. : which 
 would be most advantageous to the devisee, the specific purchase-of the 
 quantity of four hundred acres, or the payment by the executor, to the 
 use of the devisee, of the reasonable value of the last-mentioned quantity." 
 Upon the report coming before the Chancellor, it was contended by the 
 executor, that it was the intention of the testator only to give four hun- 
 dred acres of Cave Hall, which, added to the one thousand acres of Good 
 Hope, the adjoining plantation, would make only fourteen hundred 
 acres. 
 
 For Miss Bee, it was contended that a devise was a common-law con- 
 veyance : that this, in Chancery, would be considered as a devise of Cave 
 Hall plantation ; and though the testatrix might have been mistaken as 
 to the number of acres, still the words would carry the whole plantation : 
 four hundred acres, part of Cave Hall, was not a compliance with the 
 will, which directs the purchase of the "plantation called Cave Hall, 
 late the property of William Caldwell." 
 
 ;^.T^,-| *De Saussure, Chancellor. The question made and submitted 
 -^ for the judgment of the Court wns, whether Miss Bee, the devisee, 
 was entitled, under the will of Mrs. Lovcll, to have the whole of the tract 
 called Cave Hill purchased for her, or only four hundred acres thereof, 
 or the value of the same, if it cannot be purchased. There is no rule 
 more clear or fixed, than that the intention should prevail in the con- 
 struction of wills as well indeed as of contracts. 
 
 The great qualification to this rule is, that the intention of the devisor 
 or donor, shall not prevail against some known and clear rule of law, 
 founded in the general policy of the country, such as the creation of a 
 perpetuity. 
 
 On reading the will of Mrs. Lovell, it is obvious that it was her inten- 
 tion to make up a plantation of fourteen hundred acres of land for her 
 grand-niece. Miss Bee ; she says so in terms, for she declares that one 
 thousand acres shall be severed from her plantation called Good Hope, 
 and set apart for Miss Bee, and that the adjoining plantation, called Cave 
 Hall, shall be purchased, which, added to the said thousand acres, makes 
 in all fourteen hundred acres for her said niece. It appears that she was 
 mistaken as to the quantity of land in Cave Hall tract, which actually 
 contained fifteen hundred and fifty acres, and not four hundred acres, as 
 she supposed. The words of the devise were there used under a clear
 
 *301] COLUMBIA, MAT, 1835. 233 
 
 misapprehension of a fact, and the question is, Shall we give eftect to the 
 distinct intention, or to the misapprehension ? I think we are bound to 
 give effect to the obvious intention. As, however, the owner of Cave 
 Hill will not consent to sell four hundred acres of that tract, it will be 
 proper to allow Miss Bee an equivalent in money. 
 
 It is therefore ordered and decreed, that the sura of one thousand dol- 
 lars, as reported by the Commissioner to be the fair equivalent for the 
 said four hundred acres, be paid or invested by the said executor of Mrs. 
 Lovell, for the benefit of Miss Bee, the devisee, so as to be a productive 
 fund for her. 
 
 The counsel for Miss Bee now moves to reverse the decree, ou the 
 ground that his honor was wrong in not directing the executor to purchase 
 the whole of Cave Hall plantation. 
 
 JirCord, for the appellant, cited Chamberlaine v. Turner, Cro. Car. 
 129; Gascoigne v. Barker, 3 Atk. 8; Wrotesley r). Adams, 1 Plow. 191 ; 
 8 East. 163; Sugden 145; Whitaker v. Whitaker, 4 Bro. Ch. Ca. 31 ; 
 2 Atk. 369 ; Broome v. Monk, 10 Yes. 597, 618. 
 
 *Gregg, contra, cited 2 Swinb. 484 ; Shep. Touch. 623 ; 2 Roper (-^qao 
 on Leg. 328, 330; Philips v. Chamberlaine, 4 Ves. jr. 51 ; Hot- l ""^^"^ 
 ham V. Sutton, 15 Yes. 319 ; Milner v. Milner, 1 Yes. Sen. 106 ; Con- 
 stantine v. Constantine, 6 Yes. 102. 
 
 Harper, J. There is no question of the rule, that in construing wills 
 we must, if possible, give effect to the intention ; but the intention must 
 be collected from the words of the will itself, and not from any conjecture 
 of ours as to what the testator may be reasonably supposed to have 
 meant. It sometimes happens that contradictory or inconsistent instruc- 
 tions are expressed in the same will, and then it has been the rule to give 
 effect to the general or predominant intention, even at the expense of 
 that which is particular and subordinate. The words of the testatrix 
 are, that the " said plantation, called Cave Hall, be purchased and paid 
 for out of my estate, and shall be given to Rachael Susan Bee, my grand- 
 niece aforesaid." Now, if it had stopped here, words could not more 
 clearly express the intention to give the entire plantation called Cave 
 Hall. Then follow the words, "making in all fourteen hundred acres." 
 If there is anything ambiguous, it is in these latter words. I think this 
 comes within the rule expressed by Cruise, in his treatise on real ])rop- 
 erty, treating of devises. " With respect to additional words, the Courts 
 appear to have always been disposed to adopt the rule established for the 
 construction of deeds, namely, that where there is a correct and specific 
 description of the property devised, a mistake in any additional words 
 will have no effect ; but where the first description is merely general, these 
 additional words will be considered either explanatory or respective ac- 
 cording to the intention of the testator." One of the cases referred to is 
 that of Chamberlain v. Turner, Cro. Car. 129, in which the devise was 
 of "the house or' tenement wherein Nichols dwelleth, called the White 
 Swan." The jury found that William Nichols occupied the alley of the 
 said house, and three upper rooms, and that divers other persons occupied 
 the garden and other places in the said house. It was held that the 
 terms " house or tenement, called the White Swan," necessarily implied
 
 234 SOUTH CAROLINA EQUITY REPORTS. [*302 
 
 the whole house ; and the words, " wherein William Nichols dwelleth," 
 did not abridge the devise. Now the words, " the plantation called Cave 
 Hall, late the property of William Caldwell," seems to me to be as cer- 
 -. tain and specific as " the house *or tenement called the White 
 ^"^-1 Swan." In Gascoigne v. Barker, 3 Atk. 8, the devise was of "all 
 my lands, tenements and hereditaments, in possession or reversion, free- 
 hold and copyhold, in the parish of Chiswick or elsewhere in the county 
 of Middlesex, (ivJtich copyhold lands I have surrendered to the uses of 
 my will)." There was part of the premises copyhold not surrendered, 
 and the Chancellor held that this did not pass. He adds, however, that 
 if the premises had been devised by name, " messuages with the appur- 
 tenances called the King of Bohemia's Head," the whole would have 
 passed, and he would have held the subsequent words to be only a mis- 
 take in the description. In Banks v. Denshire, 1 Yes. 63, Lord Hard- 
 wieke says he determined the case of Gascoigne v. Barker with great 
 reluctance, and chiefly on the word " which.^^ In that case the devise 
 was of " all and every freehold and copyhold lands, tenements and here- 
 ditaments, (having surrendered the copyhold to the uses of my will)," &c. 
 The testator had two copyhold estates, one of which he had not surren- 
 dered; but it was held that both passed. 
 
 The principle is explained as applied to a deed, in Wrotesley v. Adams, 
 Plow. 191, that if there be a certain description in the first instance, any 
 other description is superfluous. That was a lease by a prior and con- 
 vent of " all their farm in Brosley, &c., noiv in the tenure and occupation 
 of Roger Wilcox." It is said that this word (farm) "is a capital messu- 
 age and all the lands lying to it, and signifies the chief house and lands 
 belonging to it, and not a common house ; and so has a certainty in itself. 
 And when it goes further and says, in the tenure and occupation of 
 Roger Wilcox, this is of no eff"ect ; for, if it was not in his tenure and 
 occupation, yet it should pass, for there is a certainty in the thing demised, 
 viz. : the farm in Brosley." So, if I make a release of White Acre in 
 Dale, which I have by the descent on the part of my father, and I had 
 it not by descent on the part of my father, but otherwise, yet the release 
 is good." If this had been a conveyance of the plantation called Cave 
 Hall, further described as containing four hundred acres, no doubt the 
 whole must have passed. 
 
 The testatrix clearly expresses her intention to give the whole of Cave 
 Hall plantation to her grand-niece ; but she was mistaken in its quantity. 
 She further expresses her intention to make up for her a plantation of 
 fourteen hundred acres. It was supposed that complete effect could be 
 *304l ^"^^^"^ ^^ ^^^ intention by purchasing *four hundred acres of the 
 Cave Hall plantation. But this would be speculating on in- 
 tention. What part shall be ])urchased ? That contiguous to the 
 one thousand acres devised ? But the contiguous part might be diff'er- 
 ently selected and arranged, so as to vary greatly in value. Sup- 
 pose there are valuable buildings and improvements on the land, the 
 testatrix certainly contemplated that the devisee should have these, and 
 may have made the devise chiefly with a view to them. But suppose 
 them to be so distant from the one thoustind acres as not to be included 
 m the contiguous four hundred acres. But the four hundred acres can 
 not be purchased. The object of the testatrix was to make up what she
 
 *304] COLUMBIA, MAY, 1835. 235 
 
 regarded as a suitable plantation for her grand-niece. Arc we likely to 
 approach that intention more nearly by giving her a thousand dollars ia 
 money, rather than the whole of Cave Hall plantation ? That can only 
 be matter of guess. It is better to adhere to rule than thus to speculate 
 on intention. 
 
 The decree of the Chancellor is therefore reversed, and it is ordered 
 and decreed that the executor proceed to complete the purchase of the 
 entire plantation called Cave Hall, which shall be conveyed to the devisee, 
 Rachel Susan Bee. Costs to be paid out of the estate. 
 
 JoHNSCTN, J., and O'Neall, J., concurred. 
 
 James Frazier, and Others, v. The Executors of John Frazier, Dec'd. 
 
 The Act of 1820 (p. 22j relates to emancipation within the State only, and Joes uot 
 prohibit the removal of slaves to another State for the purpose of being emanci- 
 pated. [*314] 
 
 The owner of property may by his will direct his executors to dispose of it in any 
 way he could; and as he could iu his lifetime have removed his slaves to another 
 State, and there have emancipated them, he may by will direct his executors to 
 remove and emancipate them. [*3i5] 
 
 Testator by his will directed his negroes to be hired out during the life of his wife, 
 and at her death declares "it is my will and desire that the whole of my negroes 
 be set free by my executors, and the amount of money arising from the hire of 
 the said negroes be equally divided among them; and if the hire does not amount 
 to one hundred dollars each, it shall be made up out of the other part of my 
 estate: the interest of the money is to enable them, with the assistance of govern- 
 ment, to go to St. Domingo to be colonized, or to any part they with government 
 may choose." — Ileid, that the intention of the testator was that his slaves should 
 be removed to parts where emancipation is lawful, and there be emancipated; 
 that such will was legal and would be enforced: and on a bill by the next of kin 
 claiming the slaves, the executors were ordered to remove to parts beyond the 
 State where emancipation is lawful and there set them free; that they defray the 
 expenses of removal from the interest on the one hundred dollars bequeathed to 
 each of the slaves, and that they pay the legacies of one hundred dollars each to 
 them after being so emancipated. [ ""SIS] 
 
 The testator, John Frazier, by his will, dated 14th October, 1824, 
 directs all his estate, real and personal, except his negroes, to be sold on 
 twelve months' credit or a longer time, if the executors should think it 
 better so to sell : the 2-)rnceeds of the sale, and the money due to the 
 testator at his death, were to be divided among his executors to be 
 severally managed by them; and they were to retain to their own use all 
 that they could make over the legal interest from the said funds. But out 
 of these funds the testator's widow was to be comfortably supported during 
 her natural life. She was to have the use of one or two of the testator's 
 slaves during life to *wait and attend on her " own proper person. " i-^koqc 
 The other slaves were directed to be hired out during the lifetime •- 
 of the widow. After the death of the widow, the testator directed the 
 balance of the funds of his estate arising from the sales of his land and 
 the personal estate and money due to him at his death, which might be 
 left after maintaining his wife during life, to be divided between James 
 Frazier, John M. Frazier, James Jetter, John Livingston, John Frazier,
 
 236 SOUTH CAROLINA EQUITY REPORTS. [*305 
 
 son of Benjamin, and John Gomillian, subject to a contribution from this 
 fund to make up the sum of $100 for each of his negroes, if the fund 
 arising from their hire should be insufficient. The will then proceeds, 
 " as respects the hire of my negroes, it is my will for ray executors to hire 
 out my negroes and see that they are treated well and not abused. It is 
 ray will that the money arising from the hire of said negroes be equally 
 divided among my executors as the before-mentioned part of my estate, 
 only the money arising from the hire of my negroes to he kept entire 
 and distinct from the other part of my estate before-mentioned ; and 
 after the decease of my ivife, Nancy Frazier, it is my ivill and desire 
 that the whole of my negroes be set free by my executors, and the 
 amount of money arising from the hire of the said negroes be equally 
 divided among the said negroes; and if the hire dors not amount to 
 one hundred dollars each, that it shall be made up to them out of the 
 other part of my estate before-mentioned : the interest of the money is 
 to enable them, with the assistance of government, to go to St. Domingo 
 to be colonized, or to any part that they with government may choose.'" 
 
 The testator appointed John S. Jeter, Benjamin Frazier, and James 
 Jeter, executors. The two last named qualified. By a codicil, dated 
 4th February, 1825, the testator directed that if his man slave, Isaac, 
 would pay to his executor $600, that he, his wife Lively, and his daughter 
 Haily, " shall be set free to enjoy liberty forever :" and that if his negro 
 boy, young Isaac, should wish to be set free, that upon the payment by 
 him of $650 to the executors, he " shall be set free and enjoy liberty for- 
 ever more. " 
 
 The testator died shortly after the execution of his codicil, leaving a 
 widow but no issue. The widow died in 1832, and shortly after Benjamin 
 Frazier, one of the executors, seized the negroes, with the view of carry- 
 ing the will into effect. 
 
 This bill was filed by the next of kin of the testator, claiming, amongst 
 *^nfi1 other things, the negroes and an account for their hire, *on the 
 -^ ground that the provisions in regard to them were void, as being 
 contrary to the policy and laws of this State. 
 
 The case was heard at Edgefield, June, 1833. 
 
 De Saussure, Chancellor. The questions which arise for the present 
 consideration of the Court, are : — 
 
 1. Is the bequest as to the freedom of the slaves valid and effectual ? 
 
 2. If not, who are entitled to them ? 
 
 On the first question I have no doubt : our statute forbids the emanci- 
 pation of slaves, and declares the act null and void. An argument was 
 set up for the defendants, which was urged with great ingenuity, and 
 applied with great talent. It was, that although the statute forbade 
 direct emancipation, it did not forbid a direction that the slaves should 
 be sent abroad, and there emancipated ; and that a direction to the 
 executors to do so, raised a trust in them, which they were bound to 
 fulfil, and the Court would enforce it. Upon considering this argument, 
 I am inclined to think it cannot be sustained. 
 
 The statute is founded on deep policy, and was intended to prevent 
 emancipation of slaves as a great political evil, dangerous to the institu- 
 tions of the State, and injurious to the property and interest of the citizens.
 
 *306] COLUMBIA, MAY, 1835. 237 
 
 I am aware that a statute is not to be enlarged beyond a fair and reason- 
 able construction of its words and provisions, in order to give effect to 
 some supposed recondite meaning. But Courts are bound to look to the 
 real object of a statute, and to give it effect, if the meaning be obvious and 
 the provisions of the statute sufficient to cover the meaning. In the case 
 before us, it is quite obvious, the object and intent of the Legislature was 
 to prevent the emancipation of the slaves held in the State. A direction 
 to others to do what the owner is prohibited from doing cannot be per- 
 mitted to defeat the prohibition. Such an easy evasion would be making 
 the statute a mere cobweb. The frailty of the argument was felt by the 
 counsel, who therefore endeavored to sustain it by saying the executors 
 might and were bound, as trustees, to carry it into effect, by sending the 
 slaves out of the State, and there emancipating them, which would be 
 effectual. What effect a will, which directed slaves to be sent out of the 
 State and there emancipated would have, need not be now decided in this 
 case, for the direction to the executors is simply *to emancipate, r*QA»T 
 which I take to be clearly against the statute, and null and void. ^ 
 It is true that after the direction to set the slaves free, a clause is inserted 
 providing a fund for them, which was to enable them, with the assistance 
 of the government, to go to St. Domingo, to be colonized, or to any part 
 that they and the government may choose. This provision is an incidental 
 one, and not a direct order to make an application to the Legislature for 
 permission to liberate the slaves and send them abroad. 
 
 The liberation is not made conditional and dependent on the will of 
 the Legislature to confirm the emancipation. It is an absolute direction 
 to the executors to emancipate, and then to get the assistance of the 
 government to be colonized at St. Domingo or elsewhere. I consider 
 the direction to emancipate null and void : and the rest of the provision 
 depended on that. Besides, what government is meant ? If the State 
 government, that has no foreign relations with St. Domingo, or any other 
 power or dominion by which it could give its assistance. If the govern- 
 ment of the United States be meant, assuredly neither the State nor its 
 authorities, nor any of its citizens, would ever permit the interference of 
 that government with that subject, on which the government of the United 
 States has no right to intermeddle, and on which, if it made any attempts 
 directly or indirectly, a disruption of the bonds which bind and unite the 
 States, would necessarily take place. It is the noli me tangere subject. 
 Any intermeddling by the government would be the immediate death of 
 the Union (however valued and cherished on other grounds) by the general 
 consent of the citizens. If the executors choose to apply to the State 
 Legislature, they may do it. But till that be done, and a decision be 
 made by that body, I feel myself bound to consider and treat this direc- 
 tion to executors to emancipate slaves as an attempt to evade the statute, 
 and merely null and void. Consequently the slaves attempting to be 
 emancipated, remain in their former condition, slaves. 2. The question 
 then arises, who are entitled to these slaves ? Three claims are set 
 up : — 1. By the executors, 2. By ihe residuary legatees. 3. By the 
 nearest of kin. 
 
 His Honor then went into an examination of the several provisions of 
 the will, and on its construction held that the next of kin were entitled 
 to the negroes and their hire, and decreed accordingly.
 
 238 SOUTH CAROLINA EQUITY REPORTS. [*308 
 
 *QnRl *From this decree the defendants appealed on the ground : — 
 
 J That the negroes are effectually disposed of by the will ; and 
 the trust reposed in the executors to remove and emancipate the negroes, 
 is not ih violation of the laws of this State. 
 
 Bauskett, for the appellants. The negroes are not emancipated by 
 the will — there is a mere direction to the executors to remove them out of 
 the State, and set them free. The will was executed in 1824 ; and the legal 
 presumption is, that this was done with a knowledg-e of the existing laws 
 against emancipation in the State ; it had reference therefore to emancipa- 
 tion beyond its limits. Is the bequest void according to this construction ? 
 The Court has no right to control the actions of its citizens without the 
 State. If the executors now asked leave of the Court to remove the 
 negroes for the purpose of emancipation, it would be a different question ; 
 perhaps in such case, the aid or interference of the Court would be refused. 
 But the aid of the Court is not asked — al^ that is required, is to leave the 
 executors uncontrolled — and they will, according to their oaths, perform 
 the trust imposed on them by the will. The trust is not, as has been said, 
 void, for it is not in violation of either the express letter, or intention of 
 the law of this State. The Act of 1820 is the only statute having any 
 application to this subject. It is manifest from the preamble of this act, 
 that the mischief intended to be remedied, was the emancipation of slaves 
 icithin the State. There is no attempt here to evade the act; but, in 
 fact, a plain direction to the executors to conform to it — not to attempt 
 its violation, but with certain funds set apart for that purpose, and with 
 the assistance of the government, to remove the negroes to St. Domingo, 
 or to any part that the government may choose, where they might be 
 lawfully emancipated. As the State has no foreign relations, and the 
 government of the United States cannot interfere in this subject, the 
 executors or the negroes themselves may choose the place of their removal. 
 In Young v. Sylvester, 1 Bail. 632, it was held, that but for the act of 
 1820, which was passed after the death uf the testator in that case, the 
 executors would have been compelled to emancipate according to the 
 directions of the will. If then the provisions of this act do not reach this 
 case, the executors here may be compelled in like manner to carry the 
 trusts of the will into effect. The testator, in his lifetime, beyond all 
 *3091 ^"^s^^on, could have removed his negroes to *St. Domingo, or 
 -J anywhere else, and have emancipated them. The Legislature 
 neither could impose restrictions on his rights in this respect, nor so 
 intended. If he had such rights in his lifetime, could he not delegate 
 them by will to his executors ? What prevents ? The executor is the 
 representative of his testator, invested with all his legal rights — he is in 
 law the owner of the chattels, and may dispose of them, or do any act in 
 relation to them not prohibited by law. If the executors in pursuance 
 of the will had removed the negroes, would the Court have held them 
 accountable ? 
 
 The law of the domicil governs the disposition of personal estate, and 
 the Courts of another State are bound to notice and enforce it. Suppose 
 the testator had lived and died in Georgia, and by his will had given 
 directions to his executors to hire out his negroes in South Carolina 
 during the life of the widow, and at her death to take them back to
 
 *309] COLUMBIA, MAT, 1835. 239 
 
 Georgia, and there set them free. In such case, the executors would not 
 only have the right to perform the trust, but the Courts of this Slate 
 would be bound to compel its performance. 
 
 Waddy Thoynpson, on the same side. It seems to me that this case 
 may be discriminated from that class of cases embraced in the act of the 
 Legislature prohibiting emancipation. It will be seen that the will does 
 not directly emancipate the negroes, but directs the executors to do it. 
 Now, it is said in the decree that it would be an evasion of the law to 
 allow one to do by the agency of another what he could not do himself; 
 certainly it would. What is the conclusion from this admission ? Why, 
 that the executor could do whatever his testator could. Now the tes- 
 tator could not emancipate the negroes in this State, therefore his execu- 
 tors could not emancipate them in this State ; and a provision that 
 they should do so would be void. But on the other hand, the testator 
 could have removed them from the State, and then have emancipated — 
 so can the executor ; and a bequest directing the executor to do so would 
 be good. Suppose the bequest had been an explicit direction to the 
 executors, to take the negroes out of the State, to some State where 
 emancipation was tolerated, and there to manumit them. What law of 
 the State, or what policy of the State, would be thereby violated ? Would 
 the letter of the law be violated ? And let it be remembered that this is 
 a statute in restraint* of the rights of the citizen, and therefore t^qiq 
 to be strictly interpreted, and not extended by construction. Its •- 
 prohibition is against emancipating in this State — there is no prohibition 
 against removing them out of the State, nor any against emancipating 
 them after they are out, nor could there be. What is the evil intended 
 to be prevented, if even the Court will look to that with the view of 
 extending the words of the law ? not the removal of slaves ; for on that 
 subject there would be much diversity of opinion — at all events, no legis- 
 lative prohibition has been, or ever will be enacted against it. What 
 considerations of policy are there to influence the State, to desire to pre- 
 vent emancipation in other States ? With the domestic institutions or 
 policy of other States, we are in no way concerned, and have no sort of 
 right in any way to interfere. The evil intended to be remedied was the 
 accumulation of free negroes residing amongst us, from the acts of eman- 
 cipation of their owners. This was all that the State had any interest or 
 power to prevent. The master had the power to remove his negroes- 
 why has not the executors ? Suppose the bequest had been, that his 
 executors should remove his slaves to Alabama to plant cotton — surely 
 it would be good. Suppose in the violence of our opposition to the tariff 
 laws, all manufactories of cotton goods in the State had been prohibited 
 under the severest penalties — a bequest that his executors should establish 
 a cotton manufactory in the State, and employ his slaves as operatives, 
 would have been cleavly bad. But if the bequest had been that the 
 negroes be taken to Georgia, (where there would be no such law) and 
 there thus employed, the bequest would be good. The laws of this State 
 prohibit gaming, and the keeping of gambling-houses — a bequest to the 
 executors to establish such a house, and employ his capital and slaves in 
 the establishment, would be void. But I apprehend, that if the bequest 
 had been to the executors, to take the property to Louisiana, and there
 
 240 SOUTH CAROLINA EQUITY REPORTS. [*310 
 
 establish a gaming-house (where such things are legalized) that the be- 
 quest would be good. A bequest that they be taken there, and the 
 proceeds of their sale or of their hire invested in the Commercial 
 Bank of Louisiana would be good Why not equally good if the bequest 
 were, that they should be thus invested in stock in a faro-bank which is 
 there lawful; and in which, to my knowledge, men of large fortune, who 
 never see the game played at all, invest their money as a profitable invest- 
 ment? It is there lawful, and deemed as fair an investment, and as fair 
 ^o,,-i a risk, *to put their money upon the issue whether an ace or a 
 -^ deuce will be the next card turned up, as whether a house will be 
 burned down in a given time, or a ship going to sea will reach its destina- 
 tion in safety. Here our notions of morals and of policy are different, 
 and I think wisely — we have the right to declare what shall be lawful, 
 and what not, and a provision for an unlawful purpose is void ; but we 
 have no right to say what shall be done with property the moment it 
 passes beyond the control of our laws, and as certainly none to prevent 
 it from passing beyond that limit. The testator had a right to remove 
 his negroes to Alabama to make cotton, or to New York to make free- 
 men — and he had a right to have appointed an agent in his lifetime, to 
 have done the same thing; and I cannot see why he had not a right 
 to appoint an executor to do the same thing after his death. The 
 executor is in fact strictly the agent of the testator — the agent to execute 
 his wishes after his death ; as an attorney in fact is the agent to do the 
 same thing whilst he is alive. 
 
 I think it cannot be denied, that if the testator had expressed in so 
 many words his wish that his executors should take his negroes out of 
 the State and emancipate them, that it would have been a valid bequest, 
 as not conflicting with any provision of the law, nor with any considera- 
 tions of public policy. Has he in fact expressed such an intention ? 
 For if he has, and that intention is conveyed by the words used, it is 
 sufficient. It seems from the will, that the testator was aware of some 
 legal impediment to emancipation in the State — he does not emancipate 
 himself, but directs his executors to do it. Are we not then to presume, 
 that knowing the difficulty, he intended to guard against it ? And when 
 he creates a trust, that he intended as far as in him lay to give all the 
 powers which were necessary to enable his trustees to execute it ? One 
 of those powers was, that they be taken out of the State. And this was 
 not an independent and separate provision, but necessarily connected 
 with the other. They were not to be set free immediately, but at a re- 
 mote time ; until that time, to be hired out, and that not for the benefit 
 of any one else, but solely for the purpose of raising a fund to take them 
 out of the country — for the fund arising from their hire was to be kept 
 separate. If the bequest had been that they should be sent to New 
 York, and then sent to Liberia, it would have been good — is it the less 
 *3121 Sood because there are inserted the words that they *are to be set 
 "-' free ? Where set free ? In this State ? What is there to show 
 it ? Nothing — but much to show the reverse. I will not contend that a 
 general direction to set free would mean a direction to set free out of the 
 State — but admit that, in the absence of any other words, such a provision 
 would be construed as intending to set free in the State, and therefore 
 void ; still I do contend, that there is indissolubly connected with the
 
 *312] COLUMBIA, MAY, 1835. 241 
 
 provision to set free, a direction to send out of the State ; and tliat the 
 order in which the two things are stated in the will, or rather in the same 
 sentence, is in no wise material — and that, to say that they be set free 
 and sent to Ohio, is the same ])recisely as to say, that they be sent to 
 Ohio and set free : and the more especially will the expressions be re- 
 garded as convertible, when by such construction alone, can the purpose 
 of the testator be accomplished. 
 
 D. L. IVardlaw, contra. The construction contended for is, that this 
 is a bequest to remove the slaves to St. Domingo or elsewhere, settle and 
 emancipate them. Conceding this to be the true interpretation of the 
 will, how is it to be enforced ? At whose instance ? In contemplation of 
 law, slaves are chattels, things — they have no civil rights; can hold no 
 property, nor maintain a suit, in Court. Should the executors refuse to 
 perform the trust, there is no one authorized to compel them — the Court 
 cannot interfere but in the regular course of proceedure at the instance of 
 the cestui que trusts, and they cannot be recognized as parties, or re- 
 garded as having any rights. To entertain a bill at their instance, the 
 Court must recognize persons unknown to the law, and actually confer 
 rights on mere chattels. The case is totally different from a devise to 
 charitable uses in mortmain ; for there is no one here capable of com- 
 plaining to the Court. If then the Court is wholly powerless to enforce 
 such a bequest, the bequest itself must be void. For it would be a sole- 
 cism in terms, to say that the bequest is valid, the trust is good, with- 
 out the means of enforcing it — a right without a remedy. 
 
 But the construction contended for on the part of the defendants is 
 not the true one. It is not, according to the will, a bequest to remove, 
 and then set free ; but first to set free, and afterwards to remove them 
 to St. Domingo, or elsewhere, with the assistance of the government, to 
 be colonized. The words are, "after the decease of my wife, &c., it is 
 my will and desire, that the whole of *my negroes be set free by r*oi o 
 my executors," &c., and then follows the direction to give them a ^ 
 hundred dollars each, to " enable them to go to St. Domingo, &c." There 
 is no direction here given to the excutors to remove them before emanci- 
 pation — it must take place here. The negroes were to receive each a 
 hundred dollars ; before they could receive the legacies, they must l)e 
 emancipated — as slaves, they are incapable of taking. Whatever ambi- 
 guity there may be in the will, there is none in the codicil : that directs 
 that certain negroes, on the payment of certain sums of money, shall be 
 set free ; and this is an absolute, and not a mere directory bequest — not 
 a direction to the executors to remove and emancipate, but a positive 
 bequest of freedom here ; and goes to show that such was also his inten- 
 tion in the will, in regard to all his negroes, after his wife's death — the 
 future destination of the negroes is purely matter of advice. 
 
 The aid of the government, too, is to be obtained, and the consent of 
 St. Domingo to receive these negroes. These are serious difficulties to 
 the fulfilment of this trust, independently of the act of 1820; but that 
 act utterly prevents it, by declaring emancipation illegal. The seizure 
 by the executor could not avail. Young v. Sylvester, 1 Bail. 632. The 
 bequest being void, the interests of the next of kin attached, and they 
 became entitled to possession after the widow's death, and the executor
 
 242 SOUTH CAROLINA EQUITY REPORTS. [*313 
 
 must hold for their benefit. In Walker v. Bostick, 4 Eq. Rep. 266, 
 it was held, that a bequest of a slave to a trustee with directions to 
 liberate, was an attempt to evade the law, and void ; and a legacy to the 
 slave was declared void, and fell into the residuum of the estate. — See 
 also. Chapman & Brown, 6 Yes. 403. As to the argument drawn from 
 the law of the domicil ; the law of the domicil is to prevail generally, 
 but not where the rights of the State and her public policy is concerned, 
 and would be affected by it. 3 Dallas, 370 ; Dixon v. Ramsay, 3 Cranch, 
 319. 
 
 O'Neall, J. It does not appear that any question is made under the 
 codicil : the slaves, under it, have not, I presume, attempted to obtain 
 any benefit. The probability is, that in no event could it benefit them. 
 Under the clause of the will which has been already set forth at length, 
 the question arises. Can the slaves be set free according to its directions ? 
 To solve this question it will be necessary to examine first the law on the 
 ^-- -, subject of emancipation *of slaves ; and then see whether, accord- 
 -^ ing to law and a just construction of this will, the provisions 
 directing and connected with the emancipation of the testator's slaves can 
 be carried into effect. 
 
 The Act of 1820, (Acts of 1820, p. 22,) by its preamble, recites that 
 " whereas the great and rapid increase of free negroes and mulattoes in 
 this State, by migration and emancipation, renders it expedient and 
 necessary for the Legislature to r-estrain the emancipation of slaves, and 
 to prevent free persons of color from entering into this State:" and there- 
 fore enacts "that no slave shall hereafter be emancipated but by act of 
 the Legislature." Other provisions of that, and the Act of 1823, are 
 intended to prevent the migration of free negroes into this State ; but, 
 at present, it is only necessary to look to the enactment in restraint of 
 emancipation. The great rule of construing a statute, is to construe it 
 by the old law, the mischief and the remedy, so as to put down the 
 mischief and advance the remedy The law, as it stood prior to the Act 
 of 1820, allowed emancipation to take place by deed upon an examination 
 before, and to the satisfaction of a Justice of the Quorum and five free- 
 holders, that the said slaves were of good character and capable of 
 gaining a livelihood in an honest way. Under this law, it seems from 
 the preamble of the Act of 1820, there was a rapid increase of free 
 negroes and mulattoes by emancipation. This was the evil, to remedy 
 which the Act of 1820 was passed. The remedy provided was, that 
 emancipation should only take place by act of the Legislature. This pro- 
 vision is general, and might, from the words, prohibit emancipation out 
 of, as well as within, the State by a citizen of the State. But this is a 
 construction altogether by the letter and not by the spirit of the law. 
 For the intention of the legislature is manifest — to prohibit the emanci- 
 pation of slaves within the State except by act of the Legislature. The 
 evil was the increase of free negroes within the State from emancipation. 
 So this was remedied, the end of the law was obtained. The removal of 
 slaves belonging to citizens of the State, and their emancipation in parts 
 beyond her territorial limits, was no injury to her. They could not 
 return upon her as free negroes; for the Acts of 1820 and 1823 provide 
 penalties to prevent the migration of free negroes into South Carolina.
 
 *314] COLUMBIA, MAT, 1835. 243 
 
 The Act of 1820 could not, however, have effect upon emancipation 
 beyond the limits of the State. For the slaves within her *liraits, r^qic 
 when lawfully removed beyond them, ceased to be liable to her ^ 
 jurisdiction. They then became liable to another jurisdiction, and were 
 to be held, enjoyed or disposed of, according to its laws. It is not, as I 
 understand, denied that the owner might have removed his slaves from 
 South Carolina and manumitted them in any State where he could law- 
 fully do so. But if it were denied, the denial could not be sustained : 
 for there is no law prohibiting the owner from removing his slaves from 
 this State at any moment, and for any purpose he pleases. If he has the 
 power to remove them, after tliey have crossed beyond the exterior line 
 of the State she cannot reach out a hand to touch them for any cause ; 
 and hence, if they should be then manumitted, no person can capture 
 them for being emancipated contrary to her laws ; for they have been set 
 free beyond her territorial limits, and beyond the operations of her laws. 
 In Cline v. Caldwell, 1 Hill, 427-8, we recognized this principle. In 
 Linam v. Johnson, 2 Bail. 137, it was held that a slave emancipated 
 contrary to the Act of 1820, could be seized under the provisions of the 
 Act of 1800 ; and that this was the only penalty which could be imposed 
 against illegal emancipation. This being so, and there being no right of 
 seizure for an emancipation out of South Carolina, it follows that the 
 emancipation must prevail. But it is said, although the owner might 
 remove from the State and set free his slaves, yet his executors cannot, 
 by the direction of his will, do the same acts. As a general rule, to 
 which there is no exception, unless it be by express statutory provisions, 
 it may be laid down that the owner of property may by his will direct his 
 executors to dispose of it in any way which he could. The case of 
 Bynum & Wallace v. Bostick & Walker, 4 Eq. Rep. 266, under the 
 Act of 1800, does hold that a bequest of slaves to a trustee with direc- 
 tions to set them free is void, as being contrary to that Act : but that 
 opinion was certainly prepared under a strange misapprehension of the 
 law, and without looking at the Act. For it states that the " statute 
 expressly forbids any emancipation in any other way than by deed exe- 
 cuted in the lifetime of the master a certain time before his decease.'" 
 On looking at the Act, (2 Faust, 355,) it will be seen that there is not a 
 word said about the deed being executed "in the lifetime of the master," 
 or within "a certain time before his decease." This shows at once the 
 unsoundness of that decision. The case of Lenoir v. Sylvester, and 
 Young u. the Same, 1 Bail. *632-7-8-9, held that an executor, r^oi,^ 
 under the Act of 1800, might execute the deed and do every •- 
 other act requisite by it, and thus give effect to a legacy of freedom. So 
 that at the passage of the Act of 1820, an executor could have carried 
 out and given effect to the testator's directions to emancipate his slaves, 
 just as well as he could have done. The Act of 1820 did not i)rofess to 
 abridge the rights of an executor in this respect, any more than it did the 
 rights of the owner, the testator. Emancipation by either, in the State, 
 could not be effected — it could only be done by act of the Legislature. 
 But, if the Act of 1820 did not deprive the executor of the power of 
 doing anything which his testator could lawfully do, (and in the absence 
 of any provision to that effect, it cannot be doubted that it did not.) then 
 it follows that a testator's directions to his executor to remove his negroes
 
 244 SOUTH CAROLINA EQUITY REPORTS. [*316 
 
 from the State and set them free, are legal and valid, and must be obeyed. 
 For he had the power in his lifetime to do the act ; and it follows that 
 he may authorize his executor to do the same. 
 
 This makes it necessary now to inquire as to the construction to be 
 placed on the bequests in favor of the testator's slaves in his will. It 
 directs in substance that the interest on their hire during the life of his 
 wife, or on the sum of $100 each, should constitute a fund to enable them 
 to go to St. Domingo or any other place they may choose, and to wliich 
 the government may be willing that they should go, and that his execu- 
 tors should set them free, and pay them the sum of $100 each. In con- 
 struing a will, it is a uniform rule to give it, if possible, such a construction 
 that it may have effect and not be defeated. It is hence admissible to 
 transpose words and sentences to subserve the intentions of the testator. 
 In this bequest it is manifest that the testator intended that his slaves 
 should enjoy freedom, not within the State, but in parts beyond her^limits, 
 where it might be lawful and ]iroper that they should be free. This is 
 not contrary to the law of this State. The direction to liis executors to 
 set them free must be taken to be part of the provision to " enable them 
 to go to St. Domingo to be colonized, or to any part that they, with the 
 5^oTK-| government, may *choose." To set them free within the State, is 
 '-I contrary to law ; and this the executors cannot therefore do : but 
 they can remove them from the State to parts where emancipation is 
 lawful, and there set them free. This comi)orts with the testator's inten- 
 tion, and is therefore admissible. The legacy of freedom here is in its 
 words altogether executory : and according to Lenoir v. Sylvester, and 
 Young V. the Same, 1 Bail. 637-8-9, it is the duty of the executors to 
 give it effect. But it is said, how can the Court compel the executors to 
 carry such a bequest into execution ? for the slaves themselves cannot, 
 nor can any other person, for them, file a bill to compel the executors to 
 execute a will in this respect. But I apprehend there is in this case, and 
 others like it, no difficulty. For on a bill filed by the heirs to partition 
 the slaves, the Court would, if on looking into the will they should find 
 that the executors could execute it by sending the slaves out of the State 
 and tiiere set them free, order them to so discharge the trust reposed in 
 them by the testator. In other cases, the executor's oath to execute the 
 will, and the fair claim which they have to the confidence of the Court by 
 the confidence reposed in them by the testator, are sufficient guaranties 
 that such a bequest will be faithfully executed. To remove the slaves 
 beyond the State to the pla^e to which they may choose to go, the testator's 
 estate under his directions to his executors to remove them, would have 
 been liable to the expenses, had he not provided a fund in the interest on 
 the sum of $100 each which he had bequeathed to them This last sum 
 they will also be entitled to receive on being emancipated ; for in the will 
 it follows the bequest of freedom, and is intended to vest in them and be 
 payable to them when they shall become free people. In this point of 
 view, it is not liable to the objection to which it would be subject was it 
 a legacy to slaves. 
 
 It is therefore ordered and decreed that the defendants do forthwith re- 
 move their testator's slaves to parts beyond the limits of this State, where 
 it may be lawful to emancipate them, and that they there do there legally 
 emancipate and set them free ; that they defray the expenses thereof out
 
 *317] COLUMBIA, MAT, 1835. 245 
 
 of the interest from one year after the testator's death, on the sums of $1 00 
 bequeathed to each of the said slaves when they slionld be set free: and 
 that they pay to the said slaves when they do set them free as hereinbefore 
 ordered, the sum of $100 each, and any arrears of interest which may re- 
 main after defraying the expenses of their removal and emancipation. 
 
 *It is ordered an"d decreed that the defendants do account to r-^g^g 
 such of the plaintiffs as may be entitled under the will, for the pro- L 
 ceeds of the sale of the land and personal estate and the hire of the slaves, 
 after deducting from the aggregate of principal the sum of $100 for each 
 of the said slaves at the end of one year from the testator's death ; and also 
 after deducting all sums paid properly for the maintenance of the widow, 
 and all other proper payments and expenditures touching the estate, and 
 the costs of this case, which are to be paid out of the estate. The de- 
 fendants must account for interest on the annual balances. 
 
 Johnson, J., concurred. 
 
 Wm. H. Gist v. S. P. Pressley, J as. Allston, Geo. W. Hodges, and 
 Geo. W. Pressley. 
 
 Plaintiff bad a mortgage of two negroes from his debtor against whom there were 
 senior executions. Defendants had also a mortgage of real estate junior to the plfiin- 
 tiffs, and in order to save the property mortgaged to them, purchased the eldest 
 execution. The negroes mortgaged to plaintiff, and all the other property except 
 that mortgaged to defendants were sold under the executions, and they were all 
 satisfied: the defendants afterwards foreclosed their mortgage by sale under the 
 order of the Court, the proceeds remaining in Court. On a bill filed by tlie plaintiff, 
 it was held that he was entitled to relief out of the proceeds of the property 
 mortgaged to defendants, to the extent of the sales of the negroes mortgaged to 
 him. [*324] 
 
 There is a difference between an absolute sale and a mortgage in respect to tne 
 effect of the grantor's retaining possession : in the first it is in the common course 
 that possession should be changed, and if it is not, it is evidence of fraud ; but 
 this is not the course in the case of a mortgage, and the mere circumstance of 
 the mortgagor retaining possession until condition broken, is not of itself evi- 
 dence of fraud. [*325] 
 
 Even after condition broken a mortgage is still different from an absolute sale. — 
 It is not the usual course that the mortgaged property should be seized imme- 
 diately after condition broken— some degree of neglect iu this respect will not 
 infer fraud; great neglect may. [*328] 
 
 Before Chancellor Johnston, at Abbeville, June, 1814. 
 
 The bill alleges that John B. Pressley made a note in these words :— 
 
 " On or before the first day of July next, I promise to pay William H. 
 Gist, or bearer, nine hundred dollars, for value received, with interest 
 from the first day of January last past, this 21st day of .Afay, 1832. 
 
 "(Signed) Joiix B. Pressley." 
 
 And executed the following mortgaae : — 
 
 " State of South Carolina "Whereas, I, John V>. Pressley of the dis- 
 trict of Abbeville, and State aforesaid, am indebted to AVilliam' II. Gist, 
 in the sum of nine hundred dollars by promissory note, dated the twenty- 
 first day of May, due the first day of July next, with interest thereon from 
 the first day of Januarv last. Now, therefore, l<now all men by these 
 YoL. I.— 39
 
 246 SOUTH CAROLINA EQUITY REPORTS. [*31S 
 
 presents, that I, John B. Pressley, in consideration of tlie premises, and 
 to secure the more certain payment of the above specified sum of money, 
 have granted, bargained and sold, and by these presents do grant, l^argaia 
 and sell, and in market overt delivery, to the said William H. Gist, two 
 ^„,„-n negro slaves, Godfrey and Betty, the former about twenty-eight 
 ^ -' years of age, the latter about thirty-two, to have and to hold the 
 said two negroes, with their future increase, if any, unto the said William 
 H. Gist, his heirs, executors, administrators and assigns for ever. And 
 I do hereby bind myself and my legal representatives, to warrant and 
 for ever defend the title and soundness of the said two negroes, to the said 
 AVilliam and his legal representatives, against myself, and all claims 
 derived through, or founded on ray title or claim, and against all persons 
 whomsoever, claiming or to claim the same Given under my hand and 
 seal, this nineteenth day of June, in the year of our Lord, one thousand 
 eight hundred and thirty-two. Now, the condition of the above, obliga- 
 tion is such, and it is hereby expressly agreed, that if the above bound 
 John B. Pressley, or his legal representatives, shall well and truly pay 
 the sum of money specified in the said promissory note above referred to, 
 ■with all interest there may be due thereon according to its tenor and legal 
 effect, then this obligation and every grant hereby made, shall become 
 null and void, otherwise to remain in full force and effect 
 
 Jno. B. Pressley, [Seal.] 
 
 Signed, sealed and delivered in"^ 
 the presence of j 
 
 Thos. B. Speerin, 
 Gary Davis." 
 
 That on the 19th of February, 1829, John B. Pressley, with these de- 
 fendants, his sureties, become bound to David Lesley in the penalty of 
 five thousand dollars, conditioned to pay $2000, with interest from the 
 first of January, 1829, on the first of January, 1832; which bond was 
 assigned on the day of its execution, to Alexander B. Arnold. That 
 bond being unpaid, Jno. B. Pressley, on the 23d of June, 1832, mort- 
 gaged to the defendants as an indemnity for their suretyship, a house and 
 lot in the village of Al)beville, and his mill tract of land. On the 3d of 
 August, 1832, John B. Pressley died, possessed of the negroes, house 
 and lot, mill tract of land, and very little other estate : at his death, 
 there were executions to the amount of twelve or thirteen hundred dol- 
 lars older than either of the mortgages. That soon after Pi'essley's 
 death, James Allston knowing of the plaintiff's mortgage, and suspecting 
 Pressley's solvency, on the 6th of August, 1832, took an assignment of 
 the execution of William Harris i'. John B. Pressley, which was senior 
 of the othei's, and on which was due about $910. That Allston assigned 
 one half of that execution to George W. Hodges, 1st of October, 1832. 
 *3'^01 *'^'^^'^ Allston and Hodges caused this execution to be levied on 
 -■ Godfiey and Betty, with the view to save the mill tract and house 
 and lot, for their mortgage, and they were sold in October, 1832, by the 
 sheriff, for the inadequate price of $680, which was paid over to Allston 
 and Hodges, under Harris' execution : and that under this and the other 
 executions, all the visible property of John B. Pressley, except the house 
 and lot, and mill tract, was exhausted, and all the executions satisfied. 
 
 That afterwards administration of John B. Pressley's estate was
 
 *320] COLUMBIA, MAY, 1835. 247 
 
 granted to George "W. Prcsslcy, wlio being sned by this ])1aintiff, obtained 
 leave to plead jAene adminhsli-avit, dcelaring tlicrc would l)e no assets to 
 pay simple contracts of the intestate. In November, 1833, the sureties 
 of J. B. Pressley paid the assignee of his said bond about $2G00, the 
 amount due; and in May, 1833, hied their bill for foreclosure of their 
 mortgage, upon which an order was made (June, 1833,) by the Chancellor 
 of foreclosure, to satisfy the mortgage or other lien having preference, 
 and that the money should be held by the Commissioner subject to the 
 liens of claimants ; and this order was made on the suggestion of this 
 plaintiff's claims. The house and lot and mill tract were sold for $2400. 
 That plaintiff has before and since frequently urged on defendants, that 
 his mortgage being older than theirs, he had a right in equity to insist 
 that all unincumbered property and that subject to a junior lien, should 
 be exhausted, before that suliject to his lien should be disturl)cd, and that 
 having caused a contrary course to be taken, they were 1)0uik1 to allow 
 him satisfaction of his mortgage out of the avails of theirs ; but they re- 
 fused, and even denied him a ratal)le proportion thereof. The ))ill prays 
 that the defendants may answer on oath its allegations : that Allston and ' 
 Hodges may discover what they paid for the execution of Harris ; 
 whetTier they did not procure the sale of Godfrey and Betty under that 
 execution, and whether they were not, then and before, well informed of 
 the plaintiff's mortgage ; that from the sale of the Commissioner, the 
 plaintiff may have satisfaction of his demands, or so much as will equal 
 the inadequate prices for which the negroes were sold, with interest from 
 the date of the sale ; or that of the price of the negroes, and interest 
 and the proceeds of real estate, the plaintiff may have a share propor- 
 tioned to the sum left for the sureties, as the amount of his note is to 
 their demand ; and for such other relief as should be proper. 
 
 *The answer of George W. Pressley admits $105 of assets in r*o.-)i 
 his hands applicable to debts of his intestate, J. B. Pressley, and ^ 
 that the amount of specialty debts greatly exceeds the assets. The an- 
 swer of James AUston and George W. Hodges denies that they knew 
 anything of the plaintitPs debt, and say they did^not hear of his mort- 
 gage until after J. B. Pressley's death ; nor did they hear that it was 
 older than their mortgage until they had purchased tlie Harris execution, 
 but did hear of it before the sale of Godfrey and Betty. That these de- 
 fendants were the sureties of J. B. Pressley, and as such, paid the amount 
 stated in the bill ; and that the bond on which the payment was made, 
 was for the purchase of the house and lot, afterwards with the mill tract, 
 mortgaged to them as the bill sets out : that J. B. Pressley died about 
 the time and left the property mentioned in the bill, and i)ersonal prop- 
 erty under no specific lien, which was sold by the sheriff for $656 11. — 
 They suspected the solvency of J. B. Pressley, and did buy the execu- 
 tion of Harris to protect the lot and mill tract, but i)aid for it its nomi- 
 nal value, and it had assigned as the bill states. That the plaintiff told AU- 
 ston his mortgage w'as not recorded, and theirs was recorded That 
 neither of them caused or procured a levy or sale of Godfrey and Betty 
 under their, or any other execution, nor was a levy or sale made under 
 theirs. They did not receive the price of Betty, it was paid over to 
 junior executions, and oidy received the price of Godfrey, ($430,) which 
 the sheriff had applied to theirs as the oldest execution. That the plain-
 
 248 SOUTH CAROLINA EQUITY REPORTS. ' [*321 
 
 tiff knew the negroes had been levied on and would be sold, and did not 
 resist the sale or claim the proceeds at the sherifl''s hands. That the de- 
 fendants might well have claimed the proceeds of Godfrey and Betty 
 both ; because, after the mortgage, they remained in the possession of J. 
 B. Pressley until his death, and at his late residence until seized by the 
 sheriff, having never been in the plaintiff's possession. That the plaintiff 
 never did apply to them to have their execution satisfied out of the unin- 
 cumbered property, or for payment, as the bill states. 
 
 The Chancellor decreed, that of the moneys in the hands of the Com- 
 missioner arising from the sale of the house and lot and mill tract, the 
 plaintiff should be allowed the amount for which Godfrey and Betty were 
 sold by the sheriff, with interest from the time of sale until the money 
 *Q901 was impounded by the order of the *Court of Equity. From 
 
 ^""-^ which decree the defendants, James Allston, George W. Hodges 
 and Samuel P. Pressley appealed. 
 
 A. Bu7i, for the appellants, now moved to reverse or modify the de- 
 cree, on the following grounds : — 
 
 1. Because the decree allows to the plaintiff the price of Godfrey and 
 Betty, of the avails of the land, assuming that his mortgage is older than 
 defendants', although, if older, its lien was waived by permitting them to 
 be sold, and their proceeds appropriated to Harris' and other executions; 
 and although the Harris execution was never levied, or otherwise used to 
 the plaintiff's detriment. 
 
 2. Because the Harris and other executions older than the mortgage, 
 could not be thrown upon the land ; for they were satisfied before the 
 filing of this bill. 
 
 3. Because the decree requires the defendants to account for the price 
 of Betty, although she was not sold under the Harris execution, nor the 
 proceeds of her sale applied to it. 
 
 4. Because the mortgage of the defendants being taken without the 
 knowledge of the plaintiff, and being a lien on different property, gives 
 the plaintiff no claim to subject the land to executions older than either 
 mortgage, 
 
 5. Because the possession by J. B. Pressley of Godfrey and Betty, 
 after breach of the condition of the mortgage, was fraud per se ; or at 
 least such a badge of it as impaired any claim that the plaintiff might 
 have had to the relief decreed to him. 
 
 6. Because at all events the decree should have allowed the Harris 
 execution, as the oldest, the avails of the whole unincumbered estate of 
 J. B. Pressley, and charged the land with the residue only of the defend- 
 ants' receipts under the Harris execution. 
 
 On these grounds, it was argued that the plaintiff had no equitable 
 ground of relief against the defendants, at least to the extent afforded by 
 the decree. The fifth ground was however priucipally relied on, under 
 which it was insisted that the plaintiff's mortgage was fraudulent and 
 void as to creditors and purchasers because it was not recorded, and its 
 existence was not known to the defendants — that the mortgagor, after 
 condition broken, continued in possession of the negroes, and exercised 
 all acts of ownership over them until his death, and his representatives 
 a;-_erwards up to the levy ; and permitting the property to remain in pos-
 
 *322] COLUMBIA, MAY, 1S35. 249 
 
 session *of the mortgagor, was evidence of some secret trust for r-^ooq 
 his benefit; and that the circumstances of themselves constituted L '^^ 
 such a case as rendered the mortgage absokitely void; or at least fur- 
 nished such high evidence of fraud, as should prevent the Court from 
 interfering in behalf of the plaintiff against creditors and purchasers 
 without notice. And in support of this ground, the following authori- 
 ties were cited and commented on : — Smith v. Henry, 1 Hill's Hep. IG ; 
 Cowp. 434; 1 Cranch, 316; 2 Kent's Com. 405; Hudnal v. Teasdale, 
 4 M'C. 294; 3 Co. 87; Free, in Ch. 285; 1 Atk. 165; 1 Bur. 467 ; 
 Kidd V. Rawlinson, 1 Bos. & Pul. 59 ; Arundel v. Phipps, 10 Ves. 145; 
 2 Kent's Com 412; Reeves i;. Harris, 1 Bail. 563; Edwards v. Har- 
 ben, 2 T. R. 587; Montgomery v. Kerr, 1 Hill, 291 ; Bobo v. M'Beth, 
 2 Bail. 489-91 ; Walwyn v. Lee, 9 Ves. 24; Frost v. Beekraan, 1 John, 
 Ch. Rep. 300. 
 
 D. L. Wardlaw, contra, contended that the circumstances made a case 
 for relief, on the established principles of equity that a creditor having a 
 specific lien, may compel other creditors having elder general liens, to 
 exhaust all the rest of the property before resorting to that on which he 
 has the lieu — the defendant's mortgage being junior to the plaintiff's, the 
 property therein mortgaged must be first subject to the elder executions. 
 It was mortgaged subject to the plaintiff's ecpiitable right to have it so 
 made liable before resorting to the negroes mortgaged to him ; and the 
 proceeds of the sale of the property in the hands of the Court must be 
 held liable in like manner as the property itself. As to the charge of 
 fraud, he insisted that the possession of the mortgagor was not such as 
 would render the mortgage void ; it was but for a few days after condition 
 broken, and being consistent with the purpose of the deed, repelled the 
 presumption of fraud. Cited Clowes v. Dickinson, 5 John Ch. Rep. 
 235 ; Gill v. Lyon, 1 John. Ch. Rep. 447 ; Stoney u Shultz, 1 Hill's 
 Ch. 500; 2 Bar. & Aid. 134; 1 Bin. 467; Ryan & Moody's Rep. 305. 
 
 Harper, J. The three first grounds of the motion may be considered 
 together. The principles of the Chancellor's decision, are perhaps less 
 distinctly seen, because the defendant's, Allston and Hodges, sustain the 
 characters both of senior execution creditors and junior mortgage credi- 
 tors of the deceased, John B. Pressley. If the execution creditors were 
 different persons, and were now seeking* to enforce their execu- r*qc)4 
 tions against the slaves now in question, the plaintiff' would have a L 
 clear equity to restrain them, and to compel them to resort to the property 
 mortgaged to defendants. This is on the principle expressed in the case 
 of Powler & Addison v. Barksdale, State Rep. Eq. 164, "that when a 
 preferred creditor has a lien on two funds, and another creditor has a 
 junior lien on one of them, the creditor who has the preference shall resort 
 to that which will operate the least injuriously to the other creditor." And 
 if the executions, being restrained as to the slaves, had been enforced against 
 the pi'operty mortgaged to the defendants, the latter would have had no re- 
 dress or claim of contribution against the plaintiff. The principle is fully 
 explained by Chancellor Kent, in Gill v. Lyon, 1 John. Ch. Rep. 447, and 
 Clowes V. Dickenson, 5 John. Ch. Rep. 235. When the intestate mortgaged 
 (that is, conditionally sold) the slaves to plaintiff, his execution creditors
 
 250 SOUTH CAROLINA EQUITY REPORTS. [*324 
 
 were bound on equitable principles to exhaust the property which remained 
 in his hands, before pursuing that to which plaintiff had acquired a title. 
 Among this property, was the land and mill and house and lot in question. 
 When the intestate afterwards conveyed these to defendants, he could 
 only convey them, subject to the equitable burden to which they were 
 liable in his own hands. In the language of Chancellor Kent, " they sit 
 in the seat of their grantor.^'' The burden is, that the property must be 
 liable to the execution creditors in preference to that couveyed to 
 plaintiff. 
 
 Then, if plaintiff had neglected to restrain the execution creditors, and 
 had lain by and permitted the property to be sold, and then filed his bill 
 against defendants to be reimbursed out of the property conveyed to them, 
 could that bill be sustained ? I see uo reason why it should not ; pro- 
 vided no particular injury were occasioned to defendants by the delay. 
 This is part of the matter decided in Clowes v. Dickinson. And this will 
 dispose of the third ground, relative to the proceeds of the slave, Betty 
 There were executions older than the pluintiff's mortgage, to exhaust the 
 whole personal property. That defendants were the owners of the Harris 
 execution, was merely au accidental circumstance. If they had not been, 
 and the whole of the money had been paid to third persons, their liability 
 would have been the same. In Clowes v. Dickinson, the bill was in like 
 manner filed to be reimbursed after the property first purchased had been 
 sold. In that case, too, it happened that the second purchasers of pro- 
 *q9K-] perty *had purchased the older execution. In that case, as is 
 -I alleged in this, the property (two lots of land) sold under execu- 
 tion was purchased at a very low price ; and it was contended for the 
 plaintiff, that if he were not entitled to have the lots themselves, he ought 
 to have an inquiry as to their actual value at the time of the sale. But 
 as he had been guilty of great laches, having lain by for several years, 
 and the purchasers had in the mean time made much improvements on 
 the lots, which would have rendered it inequitable that they should be 
 taken from them, the Chancellor would only allow him the amount for 
 which the property actually sold. This is what the Chancellor has done 
 in the present case ; though I do not know that laches can be imputed to 
 the plaintiff. What has been said, disposes of the fourth ground, and 
 also of the sixth. With respect to the latter, it is enough to say that 
 defendants have been satisfied their execution. It is immaterial to them 
 wiiether this has been done by the proceeds of the particular slave, Betty, 
 or other personal property of the intestate. To whatever executions 
 these may have been applied, the property in defendants' hands is liable to 
 make them good. The third, fourth anci sixth grounds are all miscon- 
 ceived. 
 
 The fifth ground is that which seems principally to be relied on. It is 
 supposed to come within the principle of the case of Smith v. Henry, 1 
 Hill, 16, that where a conveyance is made by an insolvent person in pay- 
 ment of a previously existing debt, and the grantor is allowed to retain 
 possession of the property, this is conclusive evidence of fraud. Or, at 
 all events, that the intestates having been permitted to retain possession 
 after condition broken, was a badge of fraud, which has not been ex- 
 plained, and which must vitiate the conveyance. It is argued that there 
 is no difference in principle between a conveyance by way of mortgage
 
 *325] COLUMBIA, MAY, 1H35. 251 
 
 and an absolute conveyance. The principal English cases relied on are 
 those of Edwards v. Ilarben, 1 T. R. 587 ; Ryall v. Rolle, 1 Atk. 1G5, 
 and Worsely v. De Mattos, 1 Burr. 4G7. The two latter were cases of 
 express mortgages, and, it is said, decided that possession's being retiiiiiod 
 by the mortgagor, whether before or after condition broken, is of itself 
 conclusive of fraud. But these elaborately considered cases were deter- 
 mined with reference to the English statutes of bankruptcy, and i)articu- 
 larly the 21 Jac. 1, c. 19, whicli reciting " For that it often falls out that 
 many persons, before they become bankrupts, do convey their goods to 
 other *men upon good consideration, yet still do keep the same, p:^q.')p 
 and are reputed the owners thereof, and dispose the same as their ^ 
 own," enacts, "that if at any time hereafter, any person or persons shall 
 become bankrupt, and at such times as they shall so become bankrupt, 
 shall, by consent and permission of the true owner and proprietary, have 
 in their possession, order or disposition, any goods or chattels whereof 
 they shall be reputed owners, or take upon them the sale, alteration or 
 disposition as owners, that in every such case, the said commissioners 
 shall have power to sell and dispose the same, as fully as any other part 
 of the bankrupt's estate." The cases determined that a mortgage is a 
 conditional sale and transfers the property to the mortgagee, who is 
 therefore the true owner and proi)rietary, and if by his consent it be left in 
 the mortgagor's possession, it comes within the terms of the act, whether 
 the possession be before or after condition broken. But I acknowledge 
 that the subjects is fully considered with reference to the common law, 
 and the stat. 13 Eliz. and the opinion of the Court expressed, that there 
 is no difference between a mortgage and an absolute conveyance. But it 
 is not, as under the bankrupt law, that the retaining of possession of 
 itself avoids the transaction, or is conclusive evidence of fraud. It is one 
 of the circumstances which is to be taken with all the other circumstances, 
 to make up a judgment on the fraudulent or bona fide character of the 
 transaction. After reviewing the cases on the subject, it is said in Ryall 
 V. Rolle, " Prom all these cases, it appears, that upon the construction 
 of the stat. 13 Eliz. there is no room to make a distinction between con- 
 ditional and absolute sales of goods, if made to defraud creditors, but a 
 Court or jury are left to consider of this from the circumstances of 
 the case.'''' I have before ventured to express the opinion, that the true 
 ground of decision in Twine's case was lost sight of in succeeding cases, 
 and the distinction overlooked between the cases in which the retaining 
 of possession is conclusive evidence, or only one of the badges of fraud. 
 
 I have not fouud any decision of the English Courts or our own, incon- 
 sistent with the cases of Ryall v. Rolle and Worsely v. De Mattos, on 
 the point we are considering. And I concur, that there is no distinction 
 in principle between an absolute conveyance and a mortgage or conditional 
 conveyance. There will be a great difference, however, in the application 
 of the principle, according to the circumstances of the different cases. 
 If, according *to the distinction in Smith v. Henry, there were a. (-*o9't 
 previous debt due and payable at the time, and the mortgage was '- 
 executed to secure that, the mortgagor remaining in possession, it would 
 come completely within the reasoning of that case. No other motive 
 could well be imagined for such a transaction, than that a mortgagor's 
 being permitted to retain possession of the goods, was the price paid by
 
 252 SOUTH CAROLINA EQUITY REPORTS. [*327 
 
 the ci-oditor for the preference given to him. Sucli precisely is the case of 
 Edwards v. Harben. Tliough called a bill of sale, that was in effect a 
 mortgage. It was intended as a security. It was for a debt already due, 
 and it was stipulated that the vendee should not take possession for four- 
 teen days. It was in this case that the retaining of possession was held 
 to be conclusive evidence of fraud. The case of Meggott v. Mills, 1 
 Lord Kaym. 286, which was not referred to- in Smith v. Henry, and 
 which is quoted and commented on in Ryall v. Rolle and Worsely v. De 
 Mattos, seems to me to illustrate this. In that case the landlord had 
 advanced money to his tenant to buy furniture, and took a mortgage of 
 the furnitui-e to secure himself, the tenant retaining possession. As 
 observed in both the cases mentioned, this was not decided upon any 
 notion of a distinction between a mortgage and an absolute conveyance, 
 but Lord Holt said that " if these goods of Wilson's had been assigned 
 to any other creditor, the keeping of the possession of them had made 
 the bill of sale fraudulent as to the other creditors." This cannot be on 
 any such ground as that a landlord stands on a better footing than any 
 otiier creditor ; but must go on the principle of Smith v. Henry, that he 
 who has advanced his money on the faith of the security of the mortgage, 
 stands on a different footing from a creditor to whom the debtor's goods 
 are mortgaged to secure a previously existing debt. In the former case 
 no injury is done to creditors. Tliey are deprived of nothing which they 
 would have had if the transaction had never taken place. 
 
 But when a conveyance is made to satisfy a debt created at the time, 
 then, in the case of an absolute conveyance, the retaining of possession is 
 not conclusive evidence of fraud, but one of the badges of fraud, suscep- 
 tible of explanation. So it may be in the case of a mortgage ; but there 
 is then a difference in the application of the princi})le. When there is an 
 absolute conveyance, it is in the natural course of things that the posses- 
 sion should be changed ; and when this is not done, we are set upon 
 ^^go-i looking for *some secret motive or understanding which has 
 -^ induced this departure from the ordinary course. But it is not 
 in the common course that possession should be transferred when a mort- 
 gage is executed. If there is a stipulation that possession shall be 
 retained till condition broken, it seems to me that it comes within the 
 principle of Cadogan v. Kennet, Cowp. 432; Arundel v. Phipps, 10 Ves. 
 140, and that class of cases in which possession was held not to be fraudu- 
 lent, because in pursuance of the terms of the deed. But if there be no 
 such stipulation, still it is very different from the case of an absolute sale. 
 It is the common understanding and practice of the country, that posses- 
 sion shall not be taken till condition broken. It is a conditional sale to 
 provide for satisfying a debt, and in conscience and equity the party is 
 not entitled to his satisfaction until the debt is due I should therefore 
 say, that the mere circumstance of retaining possession until condition 
 broken, is not of itself evidence of fraud. The possession is sufficiently 
 explained. 
 
 And even after condition broken, it is still different from the case of 
 an absolute sale. As I have said, in the latter case, it is the common 
 course that possession should be transferred with the title, and the depar- 
 ture from the common course is to be accounted for. But it is not the 
 comraoa course that the mortgaged property should be seized the mo-
 
 *328] COLUMBIA, JUNE, 1835. 253 
 
 ment the condition is broken. It may be liarsh to do so. It may not 
 be in the party's power to find the property, or he may not be al)le to 
 seize it without comniittiiig a trespass. Even some de.f^rcc of ne,u;lect 
 does not infer fraud. Still I think a great degree of neglect in leaving 
 the projjerty in the mortgagor's possession after condition broken, may 
 be a badge of fraud ; though not so strong as in the case of an al)soIute 
 sale. It is one among the circumstances to enable a Court or jury to 
 judge of the character of the transaction. 
 
 in this case, there was but a very trifling degree of neglect, which may 
 be further accounted for by the plaintiff's having been aware that liie 
 slaves were liable to the older executions. It was argued that this 
 mortgage was not given for a debt created at the time. The note, which 
 is the evidence of the debt, was given at the same time, (a) We know 
 nothing of the consideration of the *note, but it is not impeached. r*399 
 The only circumstance relied on to show that it was given for a ■- 
 previously existing debt, is that it provides for the payment of interest 
 from the previous first of January. But this is too slight to warrant the 
 conclusion. A contract might have been entered into at that time, with 
 a view to this security, which was not regarded as executed until the note 
 and mortgage were given. There are many ways in which the circum- 
 stance may be accounted for. Whatever consideration was paid, may 
 have gone to the use of creditors. 
 
 The motion is therefore dismissed and the decree affirmed. 
 
 Johnson, J., and O'Neall, J., concurred. 
 
 William White and John Blair, Executors of Margaret White, 
 vs. William Yaughan, Guardian of M. E. Harper. 
 
 Testatrix by her -will gave pecuniary legacies to the amount of ten thousaml and 
 sixty dollars, and several specific bequests to her niece, i\I. E. H , and others, of 
 negroes and other property including her Indian leased land, and then directs, 
 viz : " I further -will and devise that my negro man Will, have the privilege of 
 choosing his master, and be appraised to him by two good men, and that all my 
 other property be sold and the proceeds be applied towards the legacies men- 
 tioned -within, and the remaining sum of the legacies be paid by M. E. H." \Vill 
 and the,other property directed to be sold, were sold for eight hundred and ninety- 
 four dollars; the debts amounted to three hundred and seventy-eight dollars. 
 Held, that the amount of the price of Will and the other property sold, was a 
 fund set apart for the payment of the pecuniary legacies, and was exempted from 
 the payment of the debts ; that M. E. H. should make up the deficiency in that 
 sum, to the pecuniary legatees ; and that she and the other specific legatees 
 should contribute i-atably to the payment of the debts. [*334] 
 
 The testatrix's estate at her death consisted entirely of personalty; for 
 the land mentioned in her will, was (as it appeared by the statement and 
 admission of counsel,) Indian land, which is held on long leases, and is 
 therefore a chattel real, aud assets in the hands of au executor or adminis- 
 
 (a) From the brief (the only document the reporter had from which to make a 
 report, not having the Chancellor's decree,) it appears that the note was dated 
 21st May, 1832, and the mortgage the 19th June following. R.
 
 254 SOUTH CAROLINA EQUITY REPORTS. [*329 
 
 trator for the payment of debts. She by her will made the following 
 bequests, viz: — To different persons and in different amounts, the sum of 
 $1060; to William White, a negro man Anthony; to the defendant's 
 ward, M. E Harper, two feather beds, one bureau, a sorrel horse, a 
 negro woman and her five children ; and to John G. White, her (Indian) 
 land. In the ninth clause of her will, she makes the following provision : 
 "I further will and devise that my negro man. Will, have the privilege of 
 choosing his master, and that he be appraised by two good men, which 
 shall be the price for which he is io he sold; also that all my other j^f'O- 
 perty be sold, and the 2^roceeds to be applied towards the legacies men- 
 tioned loithin, and the remaining sum of the legacies be jjaid by Eliza 
 Harper,'''' &c. The negro, Will, and the other property, sold for $894 — 
 the debts of the testatrix amount to $378. The only question in the case 
 is whether the debts shall be paid out of the $894, and the balance 
 *^^nl *°^ ^^^^^ ^^^^ applied to the legacies, leaving the deficiency ( $544) 
 -• to be made up by the defendant's ward; or whether the $894 
 shall be applied to the le'gacies, and tht defendant's ward shall pay the 
 balance, $166, and in common with the other legatees of specific property, 
 contribute ratably and in proportion to the debts. 
 The case was heard at Lancaster, July, 1834. 
 
 De Saussure, Chancellor. The question made and argued was, out 
 of what fund this deficiency was to he raised. For the plaintiff, it was 
 insisted that the debts of $3tS should be paid out of the sum of $894 
 produced by the sale of Will and the other property directed to be sold, 
 which would then leave the balance of $516 to be applied to the payment 
 of the pecuniary legacies amounting to $1060, which would leave the 
 balance of $544 of the pecuniary legacies, to be paid out of the estate 
 bequeathed to Eliza Harper, subject by the will to the payment of the 
 pecuniary legacies. 
 
 For the defendants it was contended, that the debts ($318) should be 
 paid ratably out of the legacies, in proportion to their respective amounts, 
 the pecuniary legacies to be considered specific legacies under this will. 
 The original fund to pay debts is the personal property not specifically 
 bequeathed. That is the case with the price of the slave. Will, ($436,) 
 which is more than sufficient to pay the debts. The sale of the other 
 property applied to pay the legacies will leave a balance due on the 
 pecuniary legacies, which is charged by the will on the estate devised to 
 Miss Eliza Harper. It would be a singular construction of the will to 
 make the deficiency payable out of the pecuniary legacies themselves, 
 though charged expressly on the particular estate given to Miss Harper, 
 
 It is ordered and decreed that the defendant do pay to the plaintiffs 
 the amount of the deficiency of the pecuniary legacies out of the estate 
 bequeathed to Miss Eliza Harper. Costs to be paid out of the estate. 
 
 From this decree the defendants appeal on the following grounds : — 
 
 1. ^ That by the will the whole estate is disposed of without making 
 provision for the debts, and therefore these are to be paid ratably out of 
 each legacy — the pecuniary legacies to be considered specific, as they are 
 *3311 ^^ ^® V^^^ ^^^ ^^ specific property mentioned* and set apart in 
 the will ; the balance only between the amount of this specific 
 property and the legacies to be paid by defendant's ward.
 
 *331] COLUMBIA, JUNE, 1835. 255 
 
 2. That at all events, Eliza Ilarpers's legacy is only cliaro-cd witli tlie 
 difference between the sale of Will and the other property whicli anionnts 
 to $894, and $1060, the amount of pecuniary legacies, being $1GG, and 
 the Chancellor decrees $544 ; which includes not only the balance of 
 pecuniary legacies, but the debts also. 
 
 T. WiUiams, jr., for the appellant. The question is out of what 
 particular funds shall the debts be paid ; it is not whether the personal 
 estate shall be exempted and the lands charged — that question is entirely 
 different from the present. It is, whether a particular portion of tlie 
 personal estate is not exempted under this will ; and that as the balance 
 of personal property is disposed of by the will, and no provision made 
 for the payment of debts, whether the legacies may be abated propor- 
 tionably for the payment of debts. Nor is it a question whether the 
 personalty is not first liable for the debts. If the defendant were seeking 
 to exempt the personal property and to create a charge on real estate for 
 the payment of the debts, nothing short of an express declaration in the 
 will would be sufficient for this purpose. This question would turn on 
 the intent to change the 7iature of real estate to personal, and thus to 
 follow the fate of personal; and this " ijitent^^ must ho plainly and ex- 
 pressly set forth. This is admitted to be the law ; but this rule does not 
 touch the case before the Court. Here the whole estate is personal ; for 
 the lands are within the Indian boundary, and are declared to be personal 
 property, and made assets by law in the hands of executors and adminis- 
 trators to pay the debts. The question here is, whether a particular 
 part of this personal estate, to wit : the negro man. Will, and the other 
 property ordered to be sold, is not, by the clear intent of the testatrix, 
 drawn from the express words of the will, exempted from the payment of 
 debts. I conceive such is the case. What are the facts ? The testator 
 bequeaths to sundry persons pecuniary legacies to the amount of $1060. 
 Suppose the testatrix had said, " I order my executors to sell my lands, 
 (describing them,) in order to raise the money for these legatees." I ask 
 if this would not be a charge on these lands for the purpose of raising 
 this particular fund ? Would not the executor have the power, 1st to 
 sell ; 2d to make the titles ; and 3d to apply the money to the payment 
 of these pecuniary ^legacies, and w^ould this not bar the heir at r^gqc) 
 law claiming these lands ? In the case of Dunlap v. Dunlap, ^ 
 which is found in 4 Eq. Rep. 323, the Court ordered this, even under a 
 will not executed to convey the lands, and ordered debts to be paid, thus 
 defeating the heirs at law ; because a testator had by a will that passed 
 personal property, otherwise disposed of the personalty. If this would 
 create a charge on lands for the payment of legacies, it would also do it 
 for the payment of debts. 
 
 Now, here this charge is expressly set forth on Will and all the other 
 property not bequeathed, to pay these legacies. 
 
 Suppose no charge had been laid on Miss Harper's legacy ? It is a 
 specific legacy. According to the rule contended for, if the debts had 
 been $894 — the amount for which Will and the other property was sold, 
 the pecuniary legatees would get nothing, notwithstanding a si)ecific 
 property, and enough too, had been set apart by the testatrix to pay the 
 legacies.
 
 256 SOUTH CAROLINA EQUITY REPORTS. [*332 
 
 Let us put a case. The testatrix wills to her niece $1000; and says 
 in her will, " I hold a bond on A. B. for $1000 : I direct my executor to 
 collect that money, and to pay off this legacy with interest from the day 
 of my death." And then she wills her negroes by name, and her lands 
 by description, and all her other property, to her nephew. The executor 
 collects the $1000 and the interest — but the testatrix owes $1000 and 
 interest. How is this debt to be paid ? If the bond money is taken, the 
 pecuniary legatee loses her legacy ; because the balance of the estate is 
 willed in specific legacies. If the $1000 is considered specific, which it 
 ought to be, and the bond set apart to the payment, this fund then is 
 liable to the legacy ; as such it becomes specific, and is also exempt from 
 payment of debts : and thus each legacy would be abated proportionably 
 and the debtor paid.— 2 Roberts on Wills, 114 ; 2 P. W. 23 ; 1 Robt. 
 on Wills, 76, note; 4 Eq. Rep. 323. 
 
 My view of this will is this, that as the negro man, Will, and the other 
 property ordered to be sold, amounting to $894, were set apart by the 
 testatrix to pay the pecuniary legacies, ihis makes the special charge on 
 this property, and makes the pecuniary legacies specific, the same as if 
 the negro and the property had been willed, instead of their value.— See 
 1 Roberts on Wills, 76, note. — Where the profits of a term are willed, it 
 is as specific as to will the term itself. If so, the negro and other pro- 
 perty willed is exempt from the payment of debts as effectually as any 
 other specific legacy. 
 
 ^qoq-] *If the negro had died before sale, and the property ordered to 
 -' be sold, being personal, had also perished, would Miss Harper 
 have had to pay the whole of the pecuniary legacies ? I think not ; 
 because the testatrix says, "the balance of the pecuniary legacies," 
 meaning clearly the balance between the price of Will and the other pro- 
 perty, and the amount of the pecuniary legacies. 
 
 Suppose the will had said, " I appraise Will and the other property at 
 $894, this sum to be divided between my niece and nephews, who shall 
 get $1060, and the balance to be paid them by Miss Harper? Would 
 she be liable for more than the difference between $894 and $1060 ? 
 Certainly not. Now, there can be no difference between ordering the 
 property to be sold and to be appraised. The object of the testatrix 
 was to give her nieces and nephews $1060. To raise this fund she says, 
 sell a negro and other property for what they will bring, and let Miss 
 Harper make up the balance. All this is common sense. If the debts 
 are not provided for, each legatee must abate his legacy proportionably. 
 But the Chancellor, by his decree, orders the negro and other property 
 sold, to pay the debts, and then orders Miss Harper to pay up the 
 balance, which is to make her pay the debts. The will says, she shall 
 pay the balance, — meaning between what the negro and other property 
 sold for, and what the pecuniary legacies amounted to. 
 
 M'Willie, contra. The construction of the will of the testatrix con- 
 tended for by the defendant is inadmissible, because the pecuniary lega- 
 cies, in the event of other property not being sufficient to pay them, are 
 directed to be paid out of the legacy to Miss Harper. In other words, 
 the legacy to Miss Harper is charged with the pecuniary legacies ; and 
 the requisition of the will is, that it protect and pay them. The con-
 
 *333] COLUMBIA, JUNE, 1835. 257 
 
 strnction contended for defeats this provision, as it is asked to reduce 
 thera for the jmrpose of paying- debts. This ground perhaps is not 
 necessary, as the negro man, Will, is specifically betpieathed, and was 
 sold for a sura more than sufficient to pay the debts, and certainly consti- 
 tutes a fund to be so applied before the pecuniary legacies. — See 1 Eq. 
 Rep. 512-13. 
 
 O'Xeall. J. I think the view taken of this subject, by the defendant's 
 counsel, is unanswerable. It is not necessary that I should repeat argu- 
 ments which he has stated clearly and with great force. 
 
 *I have no doubt where, as in this case, the testatrix sets apart r*qqi 
 property and directs pecuniary legacies to be paid out of its pro- '- 
 ceeds, that they are entitled to have it so applied. If the other parts of 
 the estate, whether specifically devised or not, be sufficient to pay the 
 debts, the pecuniary legacies directed to bo paid out of a particular fund 
 could not be called on to contribute for their payment ; for the testatrix 
 has indicated a clear intention that that fund should be api»lied to a 
 specific purpose. A contribution by the legatees entitled to receive it, 
 would throw upon the legatee directed to make up any deficiency which 
 might be between it and the amount of the legacies, an undue proportion 
 of the debts. Indeed, if that fund was made first applicable to the debts, 
 and only the balance left was to go to the extinguishment of the pecuniary 
 legacies, the result, in making up the deficiency to them, according to the 
 words of the will, would be to charge the defendant's ward with the 
 whole debts of the estate Such a result was never contemplated by the 
 testatrix. For, after directing the proceeds of Will and the other pro- 
 perty to be applied to pay the pecuniary legacies, she says, "the remain- 
 ing sum of the legacies to be paid by Eliza Harper." These words are 
 plain and unambiguous, and their meaning is just as plain as if the 
 testatrix had known how much her personal estate directed to be sold, 
 would produce, and had said, inasmuch as the legacies I have directed to 
 be paid out of this fund will exceed it $1G6, I direct that sum to be paid 
 by Eliza Harper. This direction, that Eliza Harper should pay the 
 difference between the proceeds of the sale and the amount of the legacies, 
 not only shows that this was all the burthen she intended to cast on the 
 defendant's ward on their account, but also that those legacies should be 
 paid in full. The consequence of this is, to have the debts to be paid out 
 of the property specifically devised. 
 
 It is ordered and decreed that the Chancellor's decree be reformed in 
 the following particulars: — 1. That the defendant, as guardian of M. E. 
 Harper, do pay to the plaintiffs, for the difference between the proceeds 
 of the sale of the negro and the other i)roperty, and the pecuniary lega- 
 cies, one hundred and sixty-six dollars with interest from one year after 
 the testatrix's death : 2. That he do contriljute and pay toward the debts 
 of the deceased *such sum as may be ascertained by stating a pro- r^ooK 
 portion — as the whole value of tlie property be(pieathed to M. E. ^ 
 Harper, (after deducting therefrom the said sura of §160,) of the negro, 
 Anthony, bequeathed to William White, and of the Indian land be- 
 queathed to John G. White, is to the whole amount of the debts of the 
 deceased, so is the value of the property !)equcathed to M. E Harper, 
 (after deducting $1G6 as aforesaid,) to the amount to be paid by her on
 
 258 SOUTH CAROLINA EQUITY REPORTS. [*335 
 
 account of the debts of the testatrix. And it is referred to the Commis- 
 sioner to ascertain and report the amount of the contributions. In all 
 other respects the decree is affirmed. 
 
 Johnson, J., and Harper, J., concurred. 
 
 Nathaniel Gist, v. "Wm. G. Davis, M'Dowall & Black, and James 
 
 Hunt. 
 
 That a former decree should be a bar to another bill, it must appear that the 
 rights of the pnrties were considered and adjudged ; therefore, where the plaintiff 
 in the first bill did not show any interest or liability which required the aid or 
 interference of the Court, and on that ground his bill was dismissed, but in his 
 new bill set out his liability on a bond of indemnity connecting him in interest 
 with the parties litigant : Ilcld, that the form?r decree was not a bar to the new 
 bill. [*342] 
 
 The question considered whether a party may in contradiction to his acknowledg- 
 ment in his deed show that the consideration has not in fact been paid. It seems 
 that although he may show other and further considerations consistent with the 
 deed he may not, except in case of fraud or usury, contradict the deed by showing 
 that no consideration was received [*343] 
 
 None but parties and privies are estopped by a judgment. — Giving a bond of in- 
 demnity to the sheriff for not paying over money to a claimant, will not make one 
 a privy so as to be concluded by the judgment against the sheriff for the money ; 
 although the sheriff gave him notice to defend the action and he actually did 
 defend it. The verdict would be conclusive against him in action by the sheriff 
 on the bond, but not as to others. [*345] 
 
 Plaintiff advanced money to a manufacturing company, and afterwards, in order to 
 secure himself, and according to the agreement at the time he advanced, took 
 the outstanding title to the lands and buildings of the company to himself from 
 persons having the legal title, it not being in the company, and gave his bond to 
 convey to the company on the payment of the money. After the plaintiff had 
 advanced the money, but before he got titles defendants obtained judgment against 
 the company, and the plaintiff afterwards recovered judgment for the money 
 loaned, on which he had the lands and buildings of the company sold by the shei iff, 
 and became the purchaser at a sum less than that due to him, and took a deed 
 from the sheriff, paying no money but giving his bond to the sheriff to indemnify 
 him. Defendants brought suit at law against the sheriff claiming the money on their 
 senior execution, and obtained judgment, and was about to enforce execution against 
 him. On a bill by the plaintiff it was held he was entitled to relief, and defend- 
 ants' judgment at law against the sheriff was perpetually enjoined. [*oI9] 
 
 The following is the brief of the appellant's counsel : — 
 Bill for injunction, to cancel a bond, and for general relief. The bill 
 charges, that in the year 1818, there was a Manufacturing Company on 
 Tiger river, called the " South Carolina Cotton Manufacturing Com- 
 pany ;" and, in that year, some of the members of the company applied 
 to the plaintiff to borrow about three thousand dollars. That the com- 
 pany, being unable to give personal security, agreed to give him a lien 
 upon their property, both real and personal, on the faith of which he 
 loaned them the said sum of money ; he was shortly afterwards informed 
 that the defendant, Davis, was a member, and sanctioned the loan. That 
 when the company were about to give the lien promised, it appeared for 
 the first time to the plaintiff, that the title to the land on which the fac- 
 tory stood, with all the machinery and buildings, was in one Benjamin
 
 *335] COLUMBIA, JUNE, 1835. 259 
 
 Wofford, anrl he was under the necessity of advancing: the further sum of 
 one thousand dollars, in order to obtain a lien on the same; and upon 
 this sum being paid to Wofford, with the consent of the company, he ex- 
 ecuted a deed in fee simple to the plaintiff, for the land, includiMg all the 
 buildings, &c. ; and the plaintiff executed a bond to the company, con- 
 ditioned to make titles upon the payment of the sum borrowed, with in- 
 terest. That the reason the *cotnpany did not give him a title to pggg 
 the forty acre tract adjoining the sixty acre tract, was that some L 
 misunderstanding existed as to the boundaries, and the title bond which 
 had been given by Wofibrd to make titles to one Weathers, from whom 
 the company purchased, was lost, or mislaid : and the reason the plaintiff 
 did not obtain a lien on the land on the other vside of the river was, that 
 the company had not acquired a title to it. When the deed from Wof- 
 ford to him, was executed, plaintiff was of opinion that at the time he 
 took the deed for the sixty acres, the machinery, buildings, and every 
 thing upon it, would pass with the land ; that being advised afterwards, 
 thatit was doubtful if the machinery were attached to the freehold, he 
 procured a deed from the company, dated 13th of iMarch, 1820, for the 
 purpose of securing his claim, upon that part of the property : he also 
 obtained from one Thomas Stark, a deed for an additional portion of the 
 machinery, which had been purchased l)y the company after he took the 
 first deed : the reason he took the deed 'from Stark was, that the com- 
 pany had transferred that part of the machinery to Stark— this convey- 
 ance is dated 21st of November, 1820. The plaintiff having been 
 informed about the last of March, 1821, of a conveyance of all the lands 
 of the company to Stark, except the sixty acres, and before he knew they 
 had acquired a title to the same, immediately called upon the company, 
 and demanded a deed from Stark, which the company consented he might 
 execute to plaintiff— this deed is dated 21st of April, 1821. Wof- 
 ford executed to plaintiff a deed for the forty acres, adjoining the sixty 
 acres. — All of which deeds and transfers were made in pursuance of the 
 original agreement, that plaintiff should have a lien upon all the property. 
 That plaintiff does not know at what time the company acquired a- title 
 to the said land, but from the copy of a deed in the register's office of 
 Spartanburgh district, it appears that Weathers, from whom they pur- 
 chased, conveyed to the company a tract of three hundred acres, which he 
 supposes to be the same, on the 14th of August, 1819, and the same was 
 conveyed to Stark by the company, 10th of January, 1820, as also ap- 
 pears by a copy deed, on record in said register's office. That the 
 plaintiff never heard of the claim of M'Dowall & Black, hereinafter more 
 particularly mentioned, until about the last of January, 1820. That, 
 about that time, Andrew M'Dowall, of the firm of M'Dowall & Black, 
 called at his house, and informed him of the nature of his claim against 
 the defendant, Davis, who had lately been a member *of the firm, r^gg-j 
 It appeared from the statements of M'Dowall, that one Pena was L 
 one of the original members of the company, and that M'Dowall^ & 
 Black had purchased his interest, amounting to four shares, in the capital 
 stock, and some time afterwards sold their interest to Davis, and took a 
 mortgage upon the same. The plaintiff informed M'Dowall that he had 
 loaned the company about four thousand dollars, (at which he expressed 
 great satisfaction,) and that the company had agreed to give the plaintiff
 
 260 SOUTH CAROLINA EQUITY REPORTS. [*337 
 
 a lien upon all the property, real and personal. The plaintiff and 
 M'Dowall met the next day at the factory, and 'it was agreed upon by 
 and between them, that a confession of judgment which M'Dowall was 
 about to take from tlie company should not interfere in any manner with 
 his claim, and shoukl be postponed to the same — the origin and character 
 of M'Dowall & Black's claim will appear by a mortgage given by Davis, 
 (exhibited, with the bill.) When Davis sold to the remaining members 
 of the concern, they agreed to pay M'Dowall & Black's debt, which 
 Davis was owing for his said four shares, and to stand in his place, in re- 
 gard to the same. The confession of judgment, was for the purpose of 
 securing the same debt. A judgment was confessed by the Weavers 
 [the members of the company] to Davis, as before stated, the 30th of 
 January, 1820, and was not entered up until the 21st of October, 1820. 
 The plaintiff also obtained a judgment against the Weavers, on the 27th 
 of Octol^er, 1820, which was signed the 8th of November, 1820, -as ap- 
 pears by the record. Plaintiff, about the first of March, 1821, addressed 
 a letter to M'Dowall & Black, on the subject of their claim against the 
 Weavers, and amongst other things gave them his opinion as to the 
 prospects of obtaining the money from the concern, and also asked leave to 
 sell under the judgment of Davis, as he did not wish to incur their dis- 
 pleasure by selling under his Own. From this letter, it will appear that 
 plaintiff's claim was to be preferred to the claim of M'Dowall & Black, 
 and that, in their answer, dated 24th of March, 1820, they distinctly ad- 
 mit the fact, and they are called upon to exhibit a true copy of the letter 
 referred to, or produce the original to be used on the trial M'Dowall 
 & Black not consenting to sell under their judgment, and believing there 
 was no hope of being paid by the company without a sale, as they were 
 on the decline, on the day of 1821, the plaintiff directed James 
 
 Hunt, who was then sheriff of Spartanburgh district, to levy upon the 
 property, by virtue of his execution, which he did ; and the same was 
 *^^m ^legally brought to sale, and plaintiff became the purchaser at the 
 -■ price of $2G00, he being the highest and last bidder ; and the 
 sheriff made him a deed for the same, dated 4th of October, 1821, in 
 consideration of the said sum of $2600 as expressed in the deed, although 
 no money was paid, nor intended to be paid by plaintiff, as he then 
 claimed, and still claims the purchase money, in satisfaction of his said 
 debt, by virtue of his paramount equity, intending the said sale to fore- 
 close his equitable mortgage upon said property, and thereby rep9.y him- 
 self the money loaned with legal interest ; and also by virtue of the 
 agreement made with M'Dowall at the time the Weavers confessed the 
 said judgment to Davis ; but the plaintiff, notwithstanding he paid no 
 money to the sheriff at the time he executed the deed aforesaid, nor in- 
 tended to pay him the purchase money if he could legally avoid it, yet 
 pledged himself to Hunt to pay him the purchase money, if he should 
 ever be required to pay it to the said William G. Davis, or M'Dowall & 
 Black, and promised at all times to indemnify the said James Hunt 
 against any injury or damage he might sustain in consequence of execu- 
 ting an absolute deed for the said land, without having received the pur- 
 chase money for the same; and that plaintiff all along- from the sale down 
 to the present time, promised to indemnify him against the judgment of 
 Davis; and in pursuance of said promise on the 26th day of Jmie, 1832,
 
 *338] COLUMBIA, JUNE, 1835. 261 
 
 executed a bond of indemnity to the said James Hunt, for the purpose 
 before stated. Some short time after the sheriff's sale, a rule of Court 
 was served upon Hunt, requiring liim to show cause why he did not pay 
 over the purchase-money to the Davis execution, and the rule was re- 
 sisted and finally abandoned. From that time plaintiff rested satisfied 
 that the claim of Davis would not be allowed. The plaintiff further 
 states, that on the day of , 182-, a suit was commenced in the 
 
 Court of Common Pleas for Spartanburgh, in the name of the said 
 Davis, against the said Hunt, for the recovery of the said sum of $2600, 
 and a judgment has been rendered against the said Hunt, and execution 
 sued out thereon, and the said judgment is about to be enforced against 
 Hunt immediately and without delay, and without the aid of this Court, 
 will compel him to pay the same to the great injury of the plaintifi", as 
 he is liable over to Hunt, in case he is compelled to pay said judgment, 
 so that it appears plaintiff is the real defendant in said suit at law, and 
 Hunt a mere nominal defendant. Plaintiff would here submit the 
 *question, whether from the case made by the bill, he would not r^t-ooo 
 be entitled to be paid his debt in preference to the said Davis, '• "^ 
 even supposing his judgment is legally entitled to priority, on the ground 
 that Davis may be regarded as a member of the concern ; if not so far 
 as to make him liable for the debts of the company, at least so far as to 
 make his shares in the capital stock liable. Plaintiff states that he is 
 willing, and offers to surrender all claim he may have acquired under the 
 sheriff's sale, inconsistent with the equities of the judgment creditor, and 
 if he has obtained an undue advantage in the sheriff's sale, he consents to be 
 made responsible in any manner this honorable Court may order and di- 
 rect. The bill charges confederacy, prays for an answer, a perpetual 
 injunction against the Davis judgment, and that the bond of indemnity 
 to Hunt, may be delivered up to be cancelled, and for general relief, &c. 
 To this bill an amendment was filed, which is in substance as follows : 
 That the said William G. Davis having obtained a judgment against the 
 said James Hunt, as before stated, for the sum of $2600, and the said 
 Hunt having obtained an injunction from the Court to restrain further 
 proceedings, and given his l)ond, together with plaintiff and A. W. 
 Thomson as his securities, which injunction was finally dissolved, plaintiff 
 further showeth : That since that time, he, (being as before stated the 
 real defendant at law, and having given a bond of indemnity to the said 
 Hunt, about the time he executed titles to plaintiff for the said tract of 
 land, which bond he has discovered since the filing of the original bill, a 
 copy of which is herewith exhibited,) has filed his said bill praying, for the 
 reasons therein stated, for an injunction to stay the said execution of 
 Davis, upon which an order has been made, ordering and directing the 
 suspension of all further proceedings on said execution. Plaintiff further 
 states, that notwithstanding the said order, an action at law has been 
 commenced by Davis against the plaintiff, Hunt, and A W. Thomson, 
 upon the said bond of injunction. The amendment prays for an order 
 restraining further proceedings on said bond, and for other and furthei 
 relief, &c. 
 
 To this bill and amendment, the defendants, M'Dowall & Black, pleaded 
 in bar that a bill was filed on the 28th of March, 1827, by M'Dowall & 
 Black, against N. Gist,, the present plaintiff, and others, and the answer 
 Vol. I.— 40
 
 262 SOUTH CAROLINA EQUITY REPORTS. [*339 
 
 of N, Gist put into the same ; as also a cross bill was filed by the said N. 
 -, Gist and James Hunt, against *the defendants, IM'Dowall & Black 
 ^^"-1 and William G. Davis, and the answer of M'Dowall & Black put 
 into the same — wherein the same matters were put in issue, as by the 
 present bill of the said N. Gist are set forth and put in issue, and the same 
 were drawn in controversy before the Court of Appeals and a final decree 
 pronounced thereon, by which both the said bills were dismissed with costs 
 — and pray to be dismissed without further or other answer, &.c. 
 
 The pleadings in the former cases, referred to in the pleas, and the 
 decrees, were adduced. 
 
 De Saussure, Chancellor. On an inspection of the papers and docu- 
 ments, it appears to me that the matters of the bill and the amended bill, 
 were completely comprehended in the former proceedings, and the ques- 
 tions arising thereon have been adjudicated by the decrees of the Circuit 
 Court and Court of Appeals. Indeed the only difference in the case 
 attempted to be shown by the counsel, was that the bill in the former case 
 did not set forth that N. Gist had actually given a bond of indemnity, 
 but only that he had promised to indemnify. It does not appear to me 
 that this varies the case at all. The single question then is, is there any 
 thing in the case to prevent the application of the rule that all the mat- 
 ters and questions made by this bill, having been adjudicated upon by the 
 former decrees, the parties are concluded thereby, and no new litigation 
 is open to them. The plaintiff has not made such a new case as ought 
 to induce the Court to open the door of litigation, after the parties have 
 been so long in controversy. 
 
 The plaintiff seems to have been somehow involved in difficulties and 
 sustained losses, which are greatly to be regretted ; but they do not 
 appear to have been caused by the defendants ; M'Dowall & Black, who 
 would be far more aggrieved if they should be deprived of their remedy, 
 and of the benefit of their judgment at law ; and Mr. Hunt is merely a 
 surety. 
 
 It is therefore ordered and decreed that the plea in bar be sustained, 
 and that the injunction heretofore granted in the case be dissolved. Costs 
 to, be paid by the plaintiff. 
 
 From this decree the plaintiff appealed on the grounds : 
 
 1. That the decree is erroneous in sustaining the plea on the ground 
 that the matters in controversy were tried and adjudged in the former 
 *S411 P^'oceedings ; whereas, by reference to the proceedings *it will 
 
 -■ be seen that the plea is not true in fact, and cannot be sustained 
 in law. 
 
 2. That the case made entitles the plaintiff to relief. 
 
 Herndon and A. W. Thompson, for the appellant. 
 Henry, contra. 
 
 Harper, J. I am sufficiently clear that the plea in the present case 
 cannot be supported, whatever may be the merits of the case itself. The 
 rule is unquestionable, that where the same matter has been determined 
 by a decree between the same parties, that will be a bar to a new bill. 
 But then it must appear that the rights of the parties were actually con-
 
 *341] COLUMBIA, JUNE, 1835. 263 
 
 sidered and adjudicated. In Brandlyn r. Ord, 1 Atk. 571, Lord llard- 
 Avickc laid down the rule where the defendant pleaded a former suit, and 
 that the Court implied that there was no title where they dismissed the 
 bill, that this was not sufficient; they must show that it was ren adjudi- 
 vala, an absolute determination in the Court that the plaintiff had no title; 
 and that a bill dro))ped for want of prosecution is never to be pleaded as 
 a decree of dismission in bar to another bill. See also Pickett v. Log- 
 gon, 14 Ves. 230. If a party by his bill makes out an imperfect case, 
 so that a demurrer would hold, and the bill be dismissed on that ground, 
 I am not aware that this has ever been held a bar, if by a new bill he can 
 make out a good case. In Child v. Gibson, 2 Atk. 603, the Chancellor 
 said, "every plea that is set up as a bar, mnst be ad .idem." As I 
 understand the facts of the case from the opinion of the Chancellor, there 
 had been a former bill against the defendant as executor, for an account. 
 The new bill was also for an account, but stating specific facts of the 
 executor's having made interest on legacies specifically bequeathed. The 
 Chancellor sustained the plea to so much of the bill as sought a general 
 account, but directed it to stand for an answer relative to a demand for 
 interest. He says, "it is extremely hard to say, that because the plaintiff 
 failed in the case which he made on the former account, that now he has 
 made a new case, and brought a new bill, that he shall not be allowed 
 to go on, but be barred by a plea of a former decree in the same matter." 
 So in Collins V. Gough, V Bro. Par. Ca. 94, (quoted 2 Mad. Ch. 249.) 
 " A plea of a former deed for the payment of titles, where a modus and 
 the lands alleged to be covered by it, were imperfectly *stated, so r^r,,^ 
 that the Court could not direct an issue, was held not to be a bar L "^ -^ 
 to a bill for establishing the modus.'''' "Former bill depending pleaded 
 in bar of a second ; but the latter had some new matter. Plea allowed 
 with the actual costs ; but defendant to answer the second bill, and the 
 former dismissed with twenty shillings costs." 2 Bridg. Dig. Tit. Lis. 
 Pendens, 2, referring to Crofts v. Wortley, 1 Ch. Ca 241. That is to 
 say the plea was sustained so as to give costs, but the defendant was 
 directed to answer the latter bill which contained the whole case. The 
 cases in which the plea of a former decree has been sustained, such as Bell 
 t' Read, 3 Atk. 590, were those in which the case made by the former 
 bill was in every respect the same. 
 
 Is the case made by the two bills we are considering the same ? The 
 foraier, after stating the circumstances of plaintiff's claim, the sale of the 
 land by the sheriff. Hunt, the purchase by plaintiff, and the deed executed 
 to him by Hunt, by which he discharged him of the purchase-money, 
 without its being actually paid, prays an injunction to restrain M'Dow.ili 
 <fe Black from proceeding against Hunt. In the present bill it is further 
 stated, that upon Hunt's executing the deed to plaintift", plaintiff promised 
 to indemnify him, and afterwards, in pursuance of his promise, executed 
 a bond of indemnity, on which he will be liable if M'Dowall & Black's 
 judgment should be enforced against Hunt. Do these make the same 
 case? The Chancellor says, in his decree, that "the only difference i:i 
 the case attempted to be shown by the counsel was, that the bill in the 
 former case did not set forth that N. Gist had actually given a bond of 
 indemnity, but only that he had promised to indemnify. It docs not 
 appear to me that this varies the case at all." Now, the former bill of
 
 264 SOUTH CAROLINA EQUITY REPORTS. [*342 
 
 Gist and Hunt does not set forth any promise to indemnify ; unless it be 
 meant tliat from the fact of taking the deed, there resulted a liability to 
 pay the purchase-money, from which such a promise would be implied, 
 notwithstanding the acknowledgment of the receipt of the money in the 
 deed. Nor does any such promise appear in any part of the proceedings. 
 The present plaintiff, iu his answer to the former bill of M'Dowall & Black, 
 only says that he " does not remember that James Hunt, the sheriff, ever 
 called on him for the purchase-money of said property ; but if he had, this 
 defendant would not have paid him, as he was confident that it was due to 
 j^„ -, this defendant under the liens above stated." On the contrary, *the 
 -J former bill of Gist and Hunt was dismissed, so far as respects 
 Gist, exclusively on the ground that he had shown no interest in himself 
 or liability to Hunt, which authorized hiin to interfere between the other 
 parties, or call for the aid of the Court. It is said in the opinion of this 
 Court, that " it does not appear so far as the effect of the judgment is 
 concerned, that he needs any relief He has both land and money in his 
 own hands. Hunt made him a conveyance and discharged him of the 
 purchase-money, and M'Dowall & Black may enforce their judgment 
 against Hunt; yet on principles of law. Hunt cannot recover over against 
 Gist." It is added, " To be sure, if, as suggested, he has given a bond of 
 indemnity to Hunt, he may be liable on that ; not as being bound by the 
 judgment, but as being rendered liable by his own act." The existence 
 of such a bond was surmised iu argument, but the quotation shows that it 
 forms no part of the case then made, but was expressly excluded from the 
 consideration of the Court. Can it be said that the rights of the plain- 
 tiff, (if he has any,) in consequence of his liability on that bond, were 
 actually adjudicated by the Court ? 
 
 It seemed to be argued, however, on the part of the plaintiff, for what 
 purposes it is difficult to conceive — as if this opinion of the Court were 
 erroneous, and that from the facts stated iu the former bill, a promise on 
 the part of Gist to indemnify Hunt would be implied. 
 
 The deed acknowledges the receipt of the money, and the general rule 
 is unquestionable, that a party shall not be permitted to allege anything 
 in contradiction to his deed. There is a case, however, that of Sheppard 
 V. Little, 14 Johns. 310, in which, notwitlistanding such an acknowledg- 
 ment in a deed, evidence was received to show that the consideration had 
 not been paid. The case was, that the plaintiff being indebted to a third 
 person $180, defendant advanced the money to pay that debt, and plaintiff 
 assigned to him a lease worth $500, upon agreement that he should sell 
 it, reimburse himself, and pay over the surplus to plaintiff. Defendant 
 sold the lease, but refused to pay over the surplus, and plaintiff, bringing 
 his action, was permitted to show these facts. The determination is 
 rested upon the cases in which evidence has been received to show an 
 additional consideration beyond that expressed in the deed, and those in 
 ■which evidence has been received to contradict or show a mistake in a 
 *344l ^*^^^'P*- ^"t t'^6 *authority of that case may well be questioned. 
 -J In the case of Curry v. Lyles, decided by this Court, 2 Hill, 404, 
 evidence was received to show a further consideration than that expressed 
 in the deed. But the authorities which establish that such an averment 
 may be made or such evidence given, go upon this — that it is not to con- 
 tradict the deed, but is consistent with it. The principle is explained in
 
 *344] COLUMBIA, JUNE, 1835. 265 
 
 Mildeway's case, 1 Co. 176, that if no consideration be expressed, yet a 
 consideration may be shown ; or, if it be said, for divers considerations, a 
 particular consideration may be averred ; or wliere, as in the case of 
 Villers v. Beamont, there quoted, a money consideration was expressed, 
 it might be shown that the deed was also in consideration of marriat^e ; 
 because, as is said, "although there was a particular consideration 
 mentioned in the deed, yet an averment in the same case might be made 
 of another consideration, which stood with the indenture and was not 
 contrary to it." See also the cases on the same subject, collected by 
 Philii)S, in his Treatise on Evidence, p. 424, et seq. There is no English 
 case determined on any other principle, unless upon charges of fraud, 
 usury, &c. But, can it be said that when a party acknowledges the 
 receipt of money by his deed he does not contradict the deed by showing 
 that the money was not received ? Then, as to the cases respecting 
 receipts : a receipt is not a contract; it is merely an admission of a fact ; 
 and if the fact be not true, the party is not estopped to show tlie truth 
 by writing merely. But is there any doubt but that a party is estopped 
 by that which he recites or admits in his deed ? The decision in Shep- 
 pard V. Little, seems not to be sustained by authority or reasoning ; 
 though it strikes me that the case might, perhaps, have been rightly de- 
 termined on the score of the defendant's fraud. But admit the authority 
 of that case in the fullest manner. An express agreement was proved 
 that the defendant was to sell the lease and pay over the surplus. But 
 suppose no such agreement had been shown, and nothing had appeared 
 but the mere facts that defendant had advanced the $180 and received a 
 transfer of the lease, for the expressed consideration of $500 acknowledged 
 to be received. Could the Court have implied the agreement ? There 
 is nothing in the case or in any other case to warrant it I suppose, in 
 the case before us, that the sheriff, Hunt, knowing the facts, and taking 
 upon himself to know the law, and being satisfied that Gist was entitled 
 to the money, executed the deed, intending to ^discharge him and r^^ote^ 
 take upon himself the risk of being made liable to M'Dowall and •- 
 Black. On what principle could the Court imply a promise to indemnify 
 on the part of Gist ? But this was the precise case, as it appeared from 
 the pleadings and evidence on the former bill. Nothing was shown but 
 the purchase and the execution of the deed acknowledging the receipt of 
 the consideration; and in the absence of any showing to the contrary, 
 parties must be supposed to have intended what they have done. It 
 may be further observed, that if any promise could be implied, it would 
 not be a promise to indemnifj'-, as the Chancellor supposes, but to pay 
 ihe money; but could we imply such a promise in contradiction to the 
 express statement, that he claimed the money as his own (of course with 
 Hunt's knowledge) and would not have paid it if demanded ? 
 
 I conclude, therefore, that the plaintiff has made out a new case by his 
 present bill ; that he is not bound by the former decree, and that the 
 plea must be overruled. 
 
 And here I might properly stop — the plea Ijeing the only matter now 
 before us. But the whole merits of the case (about the facts of which 
 there does not appear to be any dispute) were fully gone into, and it 
 may save litigation and expense, that the views of the Court should be
 
 ^66 SOUTH CAROLINA EQUITY REPORTS. [*315 
 
 cxyiressed. Of coarse, if there is any misconception of facts, the parties 
 will not be concluded. 
 
 It is said in the former opinion of the Court, that although the sheriff, 
 Hunt, is concluded by the judgment at law, yet Gist is not concluded, not 
 having been a party to the suit. None but parties or privies are bound 
 by a judgment. As the case then appeared, he would not be regarded 
 as privy. A question arises, whether by giving the bond of indemnity, 
 as is now shown, he did not make himself privy, so as to be bound ; espe- 
 cially if he had notice to defend the suit, (of which there seems little 
 doul)t) as well as that he did iu fact defend it. But before going into that 
 question, I shall consider the case as it would stand if there were no such 
 judgment, or as if the suit at law were still depending. It is held iu the 
 former opinion of this Court, tliat if the purchase-money had been actually 
 paid over to the sheriff, the plaintiff would have been entitled to it; and 
 I refer to the reasoning of that opinion for the grounds of the conclusion. 
 And he would have been entitled to it on equitable principles, and might 
 have sustained a suit in equity for it. It is true, he might have brought 
 ^„ „-, *an action for money had and received ; but that action is in the 
 *-' nature of a bill in equity. It would have been a case of concur- 
 rent jurisdiction, and he might have chosen his jurisdiction. So, if the 
 sheriff had paid over the money of his own accord to M'Dowall and 
 Black, the suit might have been maintained against them. A man may 
 recover his money from any one into whose hands it may come. And it 
 would have been immaterial if the money had been recovered of the 
 sheriff by suit. There would, then, have been no ground for regarding 
 Gist as privy to the suit, or estopped by the judgment to show a prefer- 
 al)le title to the money. And if such a suit had been brought, he might 
 have brought his bill against both parties to enjoin it and establish his 
 own claim to the money. But instead of paying the money, he gave the 
 bond of indemnity. If the suit at law were still depending, he would 
 liave precisely the same ground of equity (or a clearer one as being liable 
 on the bond of indemnity) to enjoin that suit and establish his own claim. 
 And this right he still has, unless the judgment at law must be regarded 
 with respect to him as res adjudicata. 
 
 I come, then, to inquire if, as I suppose, the present plaintiff had notice 
 of the suit at law and was in truth the real defendant, whether he is 
 estopped by the judgment. And certainly it should seem that he ought 
 to be so bound. Certainly the plaintiff does not appear to come within 
 the reason of the rule which declares that none but parties are bound by 
 a verdict or judgment — that he had not an opportunity to give evidence 
 or cross-examine witnesses. It is essential to the just adrainistratiou of 
 law, that no one should be condemned without having an opportunity of 
 being heard. But it is an equally well-settled principle, and necessary to 
 the peace of society, that when he has once been heard, he shall thence- 
 forward be silent ; that when he has once had an opportunity of litigating 
 before a tribunal of competent authority, he shall not bring into question 
 again. Where a party has had an opportunity of defending himself fully 
 at law, equity will not relieve. Winthrop, Todd & Wiuthrop, v. Sur- 
 vivors of Lane, Sou & Traser, 3 Eq. Rep. 324-5, et note. Maxwell v. 
 Conner, 1 Hill's Ch. Rep. 22. It was urged with some degree of perti- 
 nacity, by the counsel on the part of the plaintiff, that the proper defence
 
 *316] COLUMBIA, JUNE, 1835. 267 
 
 was offered to tlie Court of law and rejected, and that tliis forms a pcround 
 of relief. But this seems to be contrary to the fact, as appears from the 
 report of the presiding Judge, made to this Court *on the trial at r*o , v 
 law, and as is now stated by the same Judge. Evidence was L'***' 
 offered to show that the title of the land was iu the purchaser. Gist ; but, 
 as determined in that case, this would not have been a defence. In 
 Maxwell v. Conner, the defence had been offered at law and rejected, 
 and it was held to have been the defendant's laches that he did not 
 appeal. But certainly there was no such ground of appeal in the case at 
 law of Davis v. Hunt. The ground of appeal taken (see 2 Bail. 415,) 
 " that the presiding Judge erred in rejecting evidence that the Weavers 
 had neither right, title nor interest in the land sold by defendant," is 
 inconsistent with any such defence having been offered. The very ground 
 of the defence was, that the Weavers had an erjuitable interest in tlie land 
 to compel a sale of it, and this alone constituted Gist's title to the money. 
 My own impression on the case at law was, that Gist's title was absolute, 
 and that as a matter of indulgence to the Weavers, he had consented to 
 a re-sale, to afford them the chance of an enhanced price, being ignorant 
 that the judgment of M'Dowall and Black had been entered previously 
 to his own, so as to entitle them to the money. 
 
 But I feel constrained, on authority, to come to the conclusion, that 
 although in point of fact we may be satisfied that Gist was the real de- 
 fendant at law, yet, in a legal point of view, he cannot be so considered ; 
 but that we must regard that judgment as res inter alios acta — in effect, 
 that this is a case in which he has a right to be twice heard. 
 
 There is no question respecting the general rule, that none but parties 
 and privies are estopped by a verdict or judgment. Who are privies ? 
 According to Coke, 1 Inst. [352, a.] there are "privies in blood, as the 
 heir ; privies in estate, as the feoffee, lessee, &c. ; and privies in law, as 
 the lords by escheat ; tenant by the curtesie, tenant in dower, the incum- 
 bent of a benefice, and others that come under by act in law, or in the 
 post.^' All persons claiming in any manner under either parties, will be 
 regarded as privies. " Hence the depositions of witnesses in another 
 cause in proof of a fact, the verdict of a jury finding a fact, or the judg- 
 ment of the Court on facts found, although evidence against the parties 
 and all claiming under them, are not in general to be used to the preju- 
 dice of strangers." — Per De Grey, C. J., in Duchess of Kingston's case, 
 11 State Tri. 261. Now, can Gist be regarded as claiming under the 
 sheriff, Hunt ? The latter was merely a stakeholder, *for the r^:o^o 
 person entitled to the money. I may observe here, that the giving ^ 
 of notice to defend the suit, has nothing to do with determining whether 
 the parties were or were not privies. That relates to another matter, 
 which I shall hereafter consider. If one should come by finding into the 
 possession of a chattel, which was claimed by two other persons, and be- 
 ing sued by one, should defend himself by setting up the title of the 
 other, a verdict against him would be no evidence against the other 
 claimant, in a subsequent suit for the same chattel ; and though he had 
 given him notice to defend his title, this would be supererogatory ; he 
 would still be a stranger to the first suit. 
 
 There is a class of cases in which verdicts have been held to be evi- 
 dence, and sometimes conclusive evidence, against persons neither parties
 
 268 SOUTH CAROLINA EQUITY REPORTS. [*348 
 
 to tlie suit nor privies. As in the case of Green v. The New River Com- 
 pany, 4 T. R. 589, where a master had been sued and damages recovered 
 against liira for the neglect of his servant, it was held by the Court that 
 the verdict would be evidence in an action by the master against the ser- 
 vant, not as to the fact of the injury, but the quantum of damages. This 
 case is said by Philips, p. 228, to be no exception to the rule which for- 
 bids a verdict to be evidence against any but parties or privies. The 
 verdict was not res adjudlcata as to the servant, but constituted or evi- 
 denced the very damage which the master had sustained. But the other 
 party would have nothing to do with this. He might sue both master 
 and servant ; but a verdict for or against one would be no evidence in an 
 action against the other. So in the cases in which a vendee, being sued 
 for property, gives notice of the suit to the vendor who has warranted 
 his title. Here the very undertaking of the vendor is to defend the title, 
 and his failure to do so when notified, constitutes of itself the cause of 
 action. So, where the surety to a note being sued, gave notice to the 
 principal to defend the action, the verdict was held to be conclusive in 
 an action against the [)rincipal by the surety. Here the implied contract 
 between the principal and surety was, that if the latter should be com- 
 pelled to pay the money, the former would reimburse him, and the judg- 
 ment by which he was compelled to pay, went to make up the cause of 
 action. But though the principal had had notice of the suit, and had in fact 
 defended it and failed, the verdict would have been no evidence in a sub- 
 sequent suit by the payee against the principal. Here the principal 
 *qiQl ^''^'^^d have *been twice heard. So, in the case before us, if Hunt 
 -J gave Gist notice of the suit at law, the verdict would be conclu- 
 sive in a suit by him on the bond of indemnity against Gist, as being itself 
 the cause of action. But this does not make it evidence in a suit be- 
 tween Gist and M'Dowall & Black. 
 
 The case of Kinnerley. f. Orpe, Doug. 51t, seems to be in point. In 
 that case, the plaintiff had recovered in an action for trespass on a fishery 
 against a servant of C. In another action against another servant of C, 
 who committed the trespass by C.'s command in order to try the right, 
 the former verdict was offered in evidence and received by Baron Perryn, 
 who held it to be conclusive. But on a rule for a new trial before the 
 King's Bench, though the cause went off on another point, the Court 
 thought the evidence admissible, though not conclusive. Here certainly 
 then was the same real defendant, though not the same nominal one in 
 both actions. In commenting on that case, however, in Outram v. More- 
 wood, 3 East. 366, Lord Ellenborough says : " It is extraordinary that 
 it should have been for a moment supposed that there could be an es- 
 stopped in such a case. It was not pleaded as such; neither were the 
 parties in the second suit the same as those in the first. The doubt seems 
 either to be, whether the former record in the action of trespass was at 
 all admissible in evidence upon the subsequent action against the de- 
 fendant, who was not a party to the former action, rather than as to any 
 conclusive effect which it could have had." He evidently inclines to the 
 opinion that it was not admissible, and indeed it is difficult to reconcile 
 its admissibility with the acknowledged general rule on the subject. — 
 But if we regard the judgment as admissible in this case, yet if it be not 
 conclusive, I think Gist's title to the money very clear on the reasoning
 
 *349] COLUMBIA, JUNE, 1835. 2G9 
 
 of the former opinion of the Court, (a) Reg^ardinc; the plaintilT tlion as 
 not havhig- been a party to the suit at law, nor bound by the judfj:;nicnt, 
 but coming properly and for the 6rst time to establish his claim, lie has. 
 made out a clear case for relief But though we have held that Hunt is 
 concluded by the judgment at law, yet we cannot afford Gist the relief 
 to which he is entitled, *without relieving him also. If thejudg- r^o--^ 
 ment of M'Dowall & Black were enforced against him, he would L 
 be plainly entitled to recover against Gist. If the judgment be not con- 
 clusive against Gist, it is as if the action were still depending ; in which 
 case he would have the clearest equity to enjoin it. The judgment must 
 therefore be enjoined. I am better satisfied to arrive at this result, as it 
 seems to meet the true merits of the case. 
 
 The plaintiff, however, must pay the costs. The present suit has been 
 rendered necessary by his neglect in failing to make out a proper case by 
 his former bill. It is true that he states the bond of indemnity to have 
 been out of his possession, and only recovered since the filing of his pres- 
 ent bill ; but he knew of its existence ; it does not appear but that with 
 proper diligence he might have found it before ; or if he could not, that 
 he might not have established its existence, contents and loss. The for- 
 mer bill says nothing of the bond, nor does it charge any liability to 
 Hunt, which was the plaintiff's only ground of equity. 
 
 It is ordered and adjudged that the decree of the Chancellor be re- 
 versed, and the defendant's plea be overuled. 
 
 Johnson, J., concurred, 
 
 O'Neall, J., dissenting. I dissent from this opinion on every ground 
 assumed to give the plaintiff relief. My concurrence in the former opin- 
 ion in equity was altogether in the result, not in the jirinciples or reason- 
 ing by which my brother Harper established Gist's right to sell and ob- 
 tain the benefit of Weavers' equitable estate in the manner in which he did. 
 The case of Davis v. Hunt, 2 Bail. 412, was decided correctly. The 
 principle laid down in it, "that only the defendant's interest in the land, 
 whatever that might be, was sold in the present instance, and if the pur- 
 chaser bought his own land it was his own folly," is good law, and it does 
 not cease to be good, when equity is called on to administer it. Tliat 
 principle excludes Gist, as I think, from relief both at law and in equity. 
 The plea in law is, I think, good : the very matter now decided was, as 
 I conceive, adjudged in a contrary way on the former bill. That the 
 judgment at law is conclusive against Hunt, is admitted : it is also ad- 
 mitted that if he was compelled to pay that judgment, he could sue Gist 
 on his bond of indemnity, give the recovery in evidence, and compel him 
 *by the judgment of a Court of law, to pay the recovery in JDavis r*qci 
 V. Hunt. If this does not make Gist a privy in law, I confess I '- 
 do not know what would. He stands exactly as Hunt does, and is con- 
 cluded. 
 
 (a) In McDowall & Black vs. Gist and Others, and Gist and Hunt vs. McDowall 
 & Black, Columbia, May 1833.
 
 270 SOUTH CAROLINA EQUITY REPORTS. [*35 L 
 
 Elijah Hinson, Administrator of Phil. Starke, v. James B. Pickett. 
 John Myers, Administrator of B. Starke, v. James B. Pickett. 
 
 On what grnund? motions for re-henrings or bills of review, will be granted The 
 cases on the subject reviewed [*3-3'i] 
 
 A reheai'iiig will not be granted on the ground of newly procured evidence which 
 would have materially varied the case on trial, it must appear that the evidence 
 was discovered since the decree, and of which the party could not have had the 
 benefit in the first instance. Motion for re-hearing refused, where it appeared 
 that the party knew of the evidence before trial, and could by proper diligence 
 have |irocured it. [*;r)57] 
 
 Rule laid down that a rehearing in Chancery will not be granted, on the ground of 
 after-discovered oral evidence. [*o59] 
 
 Fairfield, July 1834. 
 
 De Saussure, Chancellor. The petition by the defendant, Mr. 
 Pickett, is for a re-hearing. 
 
 The petition which accompanies this decree, sets forth, that since the 
 decrees of the Court of Equity, and of the Court of Appeals in the year 
 1832, whereby it was decided, that the sale of certain negroes (the sub- 
 ject of the dispute in the above cases) by the said James B. Pickett, to 
 one James A. Knighton, was not a real sale, but colourable and collu- 
 sive, the said defendant, James B. Pickett, has discovered, and is pre- 
 pared to submit ample testimony, to establish the fact that he did on the 
 30th December, 1829, really and bona fide sell and deliver to the said 
 James A. Knighton, all his right, title and interest, in and to the slaves 
 in dispute : that is to say, he has procured the testimony of James A. 
 Knighton himself, who resided in distant parts at the time of the trial ; 
 also the original bill of sale given by defendant to said Knighton, and 
 the testimony of the subscribing witness to said bill of sale, Jeremiah 
 Gaither, (who was examined on the trial of the said cases, to prove the 
 sale of the negroes, but was excluded from giving evidence upon the 
 most important parts of the transaction, on account of the non-pro- 
 duction of the bill of sale,) and which bill of sale it was not then in the 
 power of the defendant to produce, being then in the possession of James 
 A. Knighton, who resided some where far distant in the Western country. 
 Also the testimony of Nathan Knox, (lately discovered,) who knew the 
 negroes, or some of them, whilst they were in the possession of said 
 Knighton, in the Western country, and will prove that Knighton held 
 and used them, and finally sold some of them as liis own property, 
 *35'>1 *^"^^ ^'^^ ^^ ^^^ ^^ ^^^6 property of the petitioner, (J. B. Pickett.) 
 "'-' Also the lately discovered evidence of Joseph Hinson, the 
 brother of the plaintiff Hinson, and the evidence of Mr. Austin Peay, 
 that before the petitioner (Pickett) sold, said negroes to Knighton, he 
 actually offered to sell all his interest therein to the plaintiff, E. Hinson, 
 upon just and reasonable terras, to wit, the payment of the money due to 
 him from Baldy H. Starke, then deceased. 
 
 The petitioner humbly insisted, that upon the above-stated testimony 
 being heard, it would be decided by the Court that he has incurred no 
 liability to the plaintiffs, or either of them, by selling the said negroes to 
 Knighton : or, if he should be held liable at all, that he ought to be held 
 liable for the value of the negroes on the 30th December, 1829, and hire 
 until that time, (the day on which he sold to Knighton,) instead of their
 
 *352] COLUMBIA, JUNE, 1835. 271 
 
 value on tlie 11th June, 1833, and hire until that time, the day on wliieh 
 it would have been his duty to deliver up the said nefjroes to tlie plain- 
 tiff, Hinson, as administrator of Pliil. Starke ; (if he had not in faet sold 
 them) inasmuch as from the testimony above referred to, and ready to be 
 produced, it will appear manifestly tiiat the petitioner could not ])ossibly 
 produce or deliver up the aforesaid negroes in conformity with said 
 decree, which he would gladly have done had it been in his power. Tlie 
 ])etitioner therefore prayed for a re-hearing of said cases on the matter 
 above stated. The Commissioner made his report in these cases on the 
 reference ordered by the Court of Appeals under the decrees, and excep- 
 tions were tiled. These have been argued and decided at the present 
 Court. 
 
 The counsel for the defendant also argued the motion for a re-hearing 
 on the petition above stated, and I am now to decide thereon. 
 
 It is a serious application for a grave purpose, and should be well 
 considered. That the Court should set its face inexorably against appli- 
 cations for re-hearings, would imply a degree of confidence in its 
 infallibility which would illy comport with the humility and modesty 
 becoming men and judges. That it should yield too readily to them, 
 would lead to such renewed and prolonged litigations as would weary 
 out the patience, and exhaust the funds of suitors of small fortune It 
 therefore requires the exercise of a sound discretion and judgment, to 
 know in what cases it would be proper to grant or refuse them. As far 
 as my mind possesses these faculties, they shall be exercised in this cause. 
 To *induce the Court to grant a re-hearing after decree, there r^o^g 
 must be a strong case made that a clear mistake has been made, 
 and that new evidence has been discovered, which materially varies the 
 case from that which was made at the former hearing. 
 
 In Mitford's pleadings (afterwards Lord Redesdale) it is laid down ; 
 " That the object of a bill of review is to procure an examination or 
 reversal of a decree made upon a former bill signed and enrolled. It 
 may be brought upon error at law appearing in the body of the decree 
 itself, or upon the discovery of new matter. If it be sought to reverse a 
 decree signed and enrolled upon discovery of some new matter, the leave 
 of the Court must be first obtained : and this will not be granted, but 
 upon allegation upon oath that the neic matter could vot he jn'odiiced, 
 or used by the party claiming the benefit of it, at the time when the de- 
 cree was made. If the Court be satisfied that the new matter is relevant 
 and material, and such as might probably have occasioned a different 
 determination, it will permit a bill of review to be filed." Mitford, p. 
 7S-9. To render a bill of review necessary, the decree sought to be 
 impeached must have been signed and enrolled. If this has not been 
 done, a decree may be examined and reversed upon a species of supple- 
 mental bill in nature of a bill of review, where any new matter has been 
 discovered since the decree. And a decree not signed and enrolled, may 
 be altered upon a re-hearing without the assistance of a bill of review, if 
 there be sufficient matter to reverse it appearing upon the former pro- 
 ceedings. The investigation of the decree must be brought on by 
 petition for re-hearing. The office of the supplemental bill in nature of a 
 bill of review, is to supply the defect which occasioned the decree upon 
 the former bill. It is necessary to obtain the leave of the Court to bring
 
 272 SOUTH CAROLINA EQUITY REPORTS. [*353 
 
 a supplemental bill of this nature ; and the same affidavit is required for 
 this, as is necessary to obtain leave to bring a bill of review on discovery 
 of new matter. — Mitford, 81-2. Such is the clear exposition of that 
 learned equity lawyer, Mr. Mitford, of the course of the Court on this 
 subject. In this he is supported by other elementary works, as well as 
 by decided cases. See 2. Comyn's Dig. Tit. Chancery, letter Gr. p. 252, 
 letter (Y. 5,) p. 321. And that great master of Equity, Chancellor 
 Kent, has made corresponding decisions. See Wiser & Blachley, 2 
 John. Ch. Rep. 488, and Livingston v. Hubbs, 3 John. Ch. Rep, 124. 
 ^.,. -. Nor *has our own Court of Equity been barren of decisions on 
 ^ this subject. 
 
 Before I refer to them, however, it is proper to notice, that as we have 
 no enrolment of decrees in this State according to the English and New 
 York practice, the signature of the decree by the Chancellor of the 
 Circuit Court, and by the Judges of the Court of Appeals, with delivery 
 to the recording officer to be recordevl, is held to be equivalent to 
 enrolment. 
 
 I should also notice, that prior to December, 1824, there existed no 
 Court of Appeals; and the Chancellors more readily listened to appli- 
 cations for re-hearings, to enable them to revise their own errors or 
 oversights. 
 
 In the case of Brailsford, and Wife, v. Hey ward. Executor of Heyward, 
 2 Eq. Rep., p. 34, the Court granted a motion for re-hearing, certainly on 
 looser grounds than would now be listened to. The petition for a re- 
 hearing was on the ground of error in law on the face of the decree, in 
 deciding that the defendant was accountable, and accountable without 
 deduction. The Court granted the re-hearing, but decided after the 
 argument that the first decree was correct. 
 
 In the case of Burn v. Administrator of Poaug, 3 Eq. Rep. 596, 610, 
 &c., a petition for a bill of review or re-hearing was rejected by the 
 Court, because the petition did not make a case which comes within the 
 rules as to bills of review — for there is no error apparent on the face of 
 the decree — nor any allegation of new matter affecting the justice of the 
 case, which could not have been (procured) used at the time of the first 
 decree — nor is the petitioner entitled to a re-hearing ; as the facts 
 existing in the decree, do not warrant the conclusions drawn from them 
 by the petitioner, but support the decree. 
 
 In the case of Harvey v. Murrell, in Harper's Eq. Rep. 257, there was 
 a petition for leave to file a bill of review, on the ground of the discovery 
 of new matter. The new matter was the inventory and appraisement of 
 the estate of John Murrell, deceased, and a receipt which was in the 
 hands of the executor, the existence of which was not known at the time 
 of the trial. The Court decided that the application should be dis- 
 charged, because, if the inventory had been considered essential in the 
 investigation of the case, it could have been easily procured at the 
 Ordinary's office, where it was recorded ; and having neglected to do so, 
 *3551 f"^'"'S^*^d J^o ground *for the application ; and as to the receipt, 
 it was irrelevant to the subject in litigation, and could not have 
 varied the case. 
 
 lu the case of Haskell v Raoul, in 1 M'C. Ch. 22, 28, 32, it was de-
 
 *355] COLUMBIA, JUNE, 1835. 273 
 
 cided, by the tliennevv Court of Appeals, that the petition forare-hoarino- 
 should not be granted. 
 
 The Court then examined the grounds on which bills of review and 
 applications for re-hearings were granted in England, and in the Courts' 
 of this country, (see pp. 28, 29, 30,) and concurred in the preceding 
 decisions. Tlie Court, in page 30, denied the propriety of allowing bills 
 of review, in cases of alleged error of law, on the face of the decree of the 
 Supreme Court ; though it admitted that a bill of review for newly-dis- 
 covered evidence might be granted. 
 
 The Court also cited and relied on the case of Perkins & Lang, decided 
 by the old Court of Apj)eals in Equity, by which it was decreed that a 
 bill of review lies where there is a discovery of new matter made since 
 the decree, which new matter the party applying could not have had the 
 benefit of in the first instance; making a new case, and one proper for 
 equity jurisdiction. In that case, it being clearly shown that there was 
 evidence (a deed) newly discovered after the decree, and whicii had been 
 in the possession of the other party, and not disclosed, the Court over- 
 ruled the demurrer to the bill of review. 
 
 The decision of the old Court of Appeals in equity, in another case, 
 illustrates the course of the Court, and the great caution used in granting 
 re-hearings, and directing new trials. In the case of the Administrator 
 of Jenkins v. The Administrator of Smith, (a) at law a verdict was obtained 
 for the amount of a note of hand, given by the deceased Smith to the 
 deceased Jenkins for $5000. After the verdict and judgment at law, the 
 administrator of Smith was informed by three gentlemen that there had 
 been no consideration for the note, which had been given to Jenkins for 
 a special l^urpose, and that transaction not being carried into effect, the 
 note ought to have been cancelled. The Court of law refused to grant 
 a new trial, because the newly discovered evidence was parol. The 
 administrator then filed his bill in equity for relief against the note. It 
 appeared clearly by the evidence of three witnesses that there had not 
 been any consideration for the note which was given to carry into effect 
 an operation of Smith's own, but which failed, and he dying very soon 
 after, Jenkins kept the note, and *he then dying, his administrator r^^q-p 
 brought suit on the note. The Court of Equity gave relief, but •- ' 
 required the most clear and positive testimony that the evidence was not 
 known to the administrator on the trial at law. 
 
 In the case now before the Court, the petition is to grant a re-hcaring 
 (or bill of review) on the ground of facts discovered since the decree of 
 the Circuit Court of Equity and Court of Appeals, which arc relevant to 
 the merits of the case, and which would materially vary the case formerly 
 made, and entitle the defendant to a decree. 
 
 The alleged discovery of new matter is stated as follows : That the 
 defendant, James 13. Pickett, has procured the testimony of James A. 
 Knighton himself, (to whom the alleged sale was made) who resided in 
 distant parts at the time of trial : also the original bill of sale given by 
 defendant to said Knighton ; and the testimony of Gaither, the subscribing 
 witness to said bill of sale. And the testimony of Mr. Nathan Knox, 
 (lately discovered,) who knew the negroes, or some of them, ia possession 
 
 (a) Not reported.
 
 274 SOUTH CAROLINA EQUITY REPORTS. [*356 
 
 of James Knighton, in the western country, wlio used them as his own, and 
 sold some of them as his own property ; and also the hitely discovered testi- 
 mony of Josejjh Hinson, tlie brother of plaintiff, and the evidence of Mr. 
 Austin Peay, that defendant, before he sold the negroes to Knighton, 
 actually ofl'ered to sell all his interest in them to the plaintiff, Hinson. 
 
 We must now examine whether these allegations make such a case as 
 entitles the defendant to a re-hearing or bill of review, according to the 
 rules above laid down. It is not pretended (for it would have been 
 absurd to do so) that the defendant had discovered the evidence of Mr. 
 Knighton and the bill of sale since the decree, but that he had procured 
 it sul)scquently. He knew perfectly well who was the person to whom 
 he alleged he had sold the slaves, and that he had given a formal bill of 
 sale for the slaves. This was not a discovery of new evidence. He knew 
 he had executed a bill of sale, and had delivered the negroes. He knew 
 that the validity and the reality of that sale was in question. It was 
 alleged by the bill to be collusive, and a mere cover to remove the slaves 
 out of the jurisdiction of the Court, and cut of the reach of persons claim- 
 ing an interest in them. The bill made it a question, and the answer met 
 the question. The defendant then was fully aware that he was called upon 
 ^^^-, to support the sale by *proofs. And his counsel would advise him, 
 -^ of course, what proofs were necessary. Nor could there be any 
 complaint of want of time, for the bill ap[)ears on its face to have been 
 filed on the 2yth January, 1830, and the cause was not brought to a 
 hearing till the ITth July, 1832, which was a period of about thirty 
 months ; giving time enough to have procured the evidence from Europe, 
 and even from Calcutta. 
 
 If then the party neglected to take proper measures to obtain the evi- 
 dence necessary to sustain his case in due time, it is his own fault, and he 
 has himself alone to com})lain of. That he is thus in default is manifest 
 from the fact, that the evidence in question now presented to the Court, 
 was all procured, even after the bearing of the cause in July, 1832, for 
 the commission on which the examination of Knighton was taken, bears 
 date, the 11th May, 1838, and the execution of it by the examination of 
 Knighton, is endorsed on the 4th of June, 1833 ; showing how promptly 
 the evidence could be procured when the party was in earnest to pro- 
 cure it. 
 
 AVith respect to the rest of the evidence alleged to be new and furnish- 
 ing a ground for a re-hearing or bill of review, the greater part of it was 
 in the knowledge and the reach of the defendant, and might with reason- 
 aljle pains have been procured before the trial in July, 1832. 
 
 The petition alleged the discovery (in contra-distinction to the pro- 
 curement of the evidence) of the evidence of one Nathan Knox, who knew 
 the negroes, and that Knighton treated them as his own, and not as the 
 property of Pickett. 
 
 This evidence would have been merely subsidiary to that of Knighton. 
 And it would have been perfectly easy before the trial, to have procured 
 evidence from any persons residing near Knighton, (and his residence is 
 not denied to have been known to Mr. Pickett) as to his possession of 
 said slaves, and of his treatment of them as if they were his own. Even 
 on the supposition of a mere pretended sale, the possession and the treat- 
 ment would seem to indicate ownership in Knighton.
 
 *357] COLUMBIA, JUNE, 1835. 275 
 
 The question then recurs, and is now to be decided, whether the peti- 
 tion makes such a case of newly-discovered evidence, as entitles the 
 defendant to the re-examination of the decrees of the Circuit Court and 
 Court of Appeals. 
 
 I have examined the sultject very fully, very carefully, and with r:^Qco 
 *some anxiety ; for the answer of Mr. Pickett that it was an actual L 
 sale, made a strong impression ; and if the evidence which produced a 
 strong impression had been contradicted, either at the original hearing, 
 or by newly-discovered evidence not known, and not attainable before the 
 decree, I should have been gratified that he should have the benefit of it. 
 But I dare not violate rules made with great deliberation and on great 
 experience, to gratify my wishes. I am not at liberty to receive newly 
 procured evidence which was in the knowledge and reach of the party, as 
 newly discovered evidence; and if I did receive, I did not know that it 
 would materially change the impression made by the other evidence in 
 the cause. There is one overruling fact. The new evidence does not 
 show how, or when, any payment was made by Knighton to Pickett. 
 The petition must therefore be refused. 
 
 I cannot forbear making one or two further remarks growing out of 
 the transaction. 
 
 Mr. Pickett knew that he did not hold, nor did he ever pretend to hold 
 the slaves, as absolute owner. He knew that he had but a limited interest 
 in the slaves, yet he undertook to send them out of the State, and out of 
 the reach of those persons who had an interest in them, either by absolute 
 sale as he alleges, or by an improper or covinous transaction appearing 
 to be a sale. This was exceedingly improper. In the exercise of his 
 own rights and powers, he should have respected the rights and in- 
 terests of others. This Court grants injunctions to restrain persons, 
 having life estates in slaves, from transferring the properly out of the 
 State, on the ground of danger to the interests of remainder-men. It is 
 more than a quarter of a century since I made the first decree on the 
 subject, in Lattimore v. Elgin, 4 Eq. Rep. 26, restraining such transfer, 
 in which the grounds and reasons are given largely. 
 
 The Courts have followed out the principle, and the present Court of 
 Appeals has gone further. Upon very slight grounds of apprehension, it 
 has, as I am informed, sanctioned restraints on tenants for life, from car- 
 rying slave property out of the State. 
 
 The present immense and unfortunate emigration, where persons are 
 carrying off a vast number of slaves, held by various titles, and some of 
 them for short terms, seems to require great vigilance *in the r^ocq 
 Courts, to protect and preserve the interests of the citizens who ■- 
 remain faithful to their country. 
 
 Defendant appeals, and moves to reverse the decision of the Chancellor 
 in this case, upon the ground: — 
 
 That the facts and circumstances set forth in the petition for a rehear- 
 ing are sufficient in equity to entitle him to the same. 
 
 Clarke and M'Dowell, for the motion. 
 
 M'Gall, contra. 
 
 Johnson, J. We concur entirely in the conclusions of the Chancellor,
 
 276 SOUTH CAROLINA EQUITY REPORTS. [*359 
 
 and propose to add to what has been already so well said, only a few 
 remarks in reference to the j)oint decided in the case of The Administra- 
 tors of Jenkins v. The Administrators of Smith, in which relief was 
 granted on the discovery of oral evidence after the trial. 
 
 The rule at law, as long and well settled in this State, is, that a new 
 trial will not be granted on the ground of after-discovered testimony. It 
 was so ruled in the case of the State v. Harding, 2 Bay, 267, and has 
 been followed ever since. (See Ecfert v. Des Coudress, 1 Con. Rep. 
 G9 ; Executors of Evans i-. Rogers, 2 Nott & M'Cord, 563.) And I am 
 unable to perceive that there is any solid foundation for a different rule 
 in Chancery. The delay to which it would lead, and the danger of sub- 
 ornation of perjury, in which the rule is founded, is precisely as great in 
 the one Court as the other. And that is most obviously the leaning of 
 Chancellor Kent, in Livingston v. Hubbs, 3 John's Ch. Rep. 241, 
 although the question was not directly decided ; and such is obviously 
 the conclusion to be drawn as to the rule in England, from the remarks 
 of the Lord Chancellor, in Taylor u. Sharp, 3 P. W. 371, referred to 
 by Chancellor Kent. During our present sitting, the question, came 
 indirectly before the Court, in the case of Perry v. Mays, in which the 
 same opinion was expressed. The question cannot depend on the 
 number or the respectability of the witnesses — one unsuspected, irre- 
 proachable witness, would obtain credit for what he would swear, as soon 
 as an hundred of doubtful and suspicious character, yet it would be 
 difficult to discredit an hundred of such witnesses, who, without any 
 *^rnl concert ^testified to the same facts, and which were in their nature 
 J probable. I am therefore very decidedly of opinion, that a re- 
 hearing of a cause in Chancery ought not to be granted in any case, ou 
 the o-round of after- discovered oral evidence.
 
 CASES IN CHANCERY 
 
 ARGUED AND DETERMINED IN THE 
 
 COlTiT OF APPEALS OP SOUTH CAEOLOA 
 
 Columbia — December, 1835. 
 
 JUDGES PRESENT. 
 
 Hon. DAYID JOHNSON, President. 
 Hon. J. B. O'NEALL. I Hon. WILLIAM HARPER. 
 
 Ann Bryan, and Others, v. John Mulligan, Executor of Bryan, 
 
 deceased. 
 
 An executor or administrator is only required to manage the estate in his charge as 
 a prudent man would his own, and in case of loss, the question of his liability 
 cannot be resolved by any general rule but depends on the particular circum- 
 stances of each case. [*36i] 
 
 Generally it is the safer rule for an executor to sell the produce of the estate in the 
 market usually resorted to; but when acting in good faith and under a reasonable 
 expectation of a greater profit, he shipped the cotten to Liverpool, instead of 
 selling it in Charleston, and the Liverpool price was less than he was olfered in 
 Charleston, he will not be chargeable with the loss. [*364J 
 
 Heard at Barnwell, February, 1835. 
 
 This was a bill for an account of the defendant's administration and 
 management of the estate of his testator ; and came on for a hearing 
 upon an exception filed by the plaintiffs to the Commissioner's report 
 upon the accounts. The single question involved in the exception, and 
 decided by his Honor will be sufficiently understood by his decree. 
 
 De Saussurr, Chancellor. This case came up on the report of the 
 Commissioner, and an exception thereto filed by the plaintiffs. The 
 report of the Commissioner was satisfactory to both parties, except on 
 one point, which is stated in the following words : — " For that the Com- 
 missioner, in and by his said report, ought to have charged the defendant 
 for the nine bales of cotton, which he *shipped to Liveri)Ool in the r*Qg2 
 year 1825, with the price which the said cotton might have been L 
 sold for in the Charleston market, and with the interest thereon." 
 
 The exception involves a question of considerable importance to the 
 community. The testimony presented to the Court was as follows : — 
 
 William R. Ball, testified that Mr. Mulligan, the executor, shipped to 
 Vol. I.— 41
 
 278 SOUTH CAEOLINA EQUITY REPORTS. [*362 
 
 Liverpool nine bales of cotton of the crop of the estate of the year 1824. 
 The shipment was made in the year 1825. Mr. Mulligan informed the 
 witness that he had been offered 24 cents per pound for it in Charleston. 
 The bales of cotton made on the plantation generally averaged from 330 
 lbs. to 350 lbs. weight. It appears that by the sales in Liverpool a 
 smaller price was obtained for the cotton of the estate than the price 
 offered to Mr Mulligan in Charleston ; and the object of the exception is 
 to charge the defendant, the executor, with the larger price. It is ad- 
 mitted that Mulligan shipped cotton of his own, at the same time, and 
 suffered also in the same way; and there is no doubt that he intended 
 what he honestly thought was for the benefit of the estate. The decision 
 of the question will depend upon the right which an executor has to act 
 as this executor has done. 
 
 In my judgment he had no right to enter into such a speculation as he 
 did. It was his duty to send the crop to the regular markets of the 
 country, and to have accepted the best price which they afforded ; and 
 not to have speculated on the possibility of a better market abroad. 
 That was an uncertain risk — a risk not only of the price, but of the 
 capital itself. It would be dangerous to estates to sanction such a 
 course, and would open the door to great abuses, especially where the 
 intentions of executors were not as pure as those of this executor are 
 admitted to have been. 
 
 It is therefore ordered and decreed, that the report be referred back 
 to the Commissioner, with instructions to correct the same, by charging 
 the executor with the amount of the nine bales of cotton, at the price of 
 24 cents per pound, which he was offered in Charleston, and refused. 
 
 From this decree the defendant appeals, and moves that the same may 
 be reversed, or modified, on the following grounds : — 
 
 1. That the law imposes no other restraint upon an executor, in 
 selecting a market for the disposal of the produce made by him upon the 
 j^g„.j-| estate of his testator, than the exercise of a sound discretion *in 
 
 -^ determining as to which of the several markets accessible to him, 
 will be most advantageous for the estate : and that under peculiar cir- 
 cumstances, he would not only be justifiable in selecting the ultimate 
 market, although in a foreign country, but might even subject himself to 
 deserved censure for not doing so, especially as he might guard against 
 all the risks of transmission by insurance at an almost insignificant pre- 
 mium. 
 
 2. That whether the defendant, in sending the cotton made on his tes- 
 tator's estate to Liverpool, acted within the limits of a sound discretion, 
 or indulged a wild unjustifiable spirit of speculation, for the result of 
 which he should beheld chargeable, depends altogether upon the circum- 
 stances under which the shipment was made ; and his liability is therefore 
 a question of fact, upon which the judgment of the Commissioner in his 
 favor, ought to have been regarded by the Chancellor as conclusive. 
 
 3. That if the decision of the Commissioner were not regarded as con- 
 clusive, still it was not impeached by any evidence ; and the Chancellor 
 has decided a question of fact as a question of pure law, without reference 
 to the evidence. 
 
 4. That, in point of fact, the propriety of sending the cotton to Liver- 
 pool was not impeached by a tittle of evidence bearing upon the question ;
 
 *363] COLUMBIA, DECEMBER, 1834. 270 
 
 and the decree therefore operates as a surprise upon the defendant, who 
 has been precluded from producing evidence, whicli it was in his ])ower to 
 obtain in Charleston establishing the propriety of the sliipnient at the- 
 time when it was made, and showing, in fact, that not to have made it, would, 
 under the circumstances, have argued a gross disregard of the interests 
 in his charge. And it is submitted that, in the absence of evidence im- 
 peaching the propriety of the shipment, the Chancellor, if he entertained 
 any doubt of it, should have done no more than to direct an inquiry by 
 the Commissioner. 
 
 5, That even if the liability of the defendant were conceded, the extent 
 of it should not have been settled by loose, uncertain and speculative evi- 
 dence, as to the weight of the cotton, and the prices which might have 
 been obtained for it in Charleston, when it was in the power of tlie plain- 
 tiff to have produced exact proof from the scale books on the first point, 
 and the prices current of the period, and the testimony of factors in 
 Charleston, as to the second. And it is submitted that, on this question 
 also, an inquiry *by the Commissioner should have been directed, r^op j 
 if the exception were not itself overruled. '- 
 
 Colcock, for the appellant. 
 
 Patterson, contra. 
 
 Johnson, J. The rule laid down by the Court in Taveau v. Ball, 1 
 M'C. Ch. Rep. 464, is, that executors, administrators, and others, acting 
 in a fiduciary character, are bound to manage the funds committed to 
 their care, with the same care and diligence that a prudent and cautious 
 man would bestow on his own concerns ; and I am not aware that the 
 correctness of this rule has ever been called in question. In all cases, 
 therefore, where a loss arises in the management of funds by an executor, 
 or other person acting as a trustee, the question arises whether the loss 
 happened from casualties against which no one can be expected always 
 to guard, or from his want of care and circumspection ; and is an unmixed 
 question of fact which cannot be resolved by any rule, but must depend 
 on the particular circumstances of each case. 
 
 In the management of an estate by an executor or administrator, it 
 would be generally safe to sell the produce of the estate in the market 
 usually resorted to in the country where it is situated, because it would 
 furnish evidence of ordinary care and circumspection, but as an arbitrary 
 rule, it never could be tolerated. The town of Columbia is, for example, 
 the common market of the districts lying north of it ; and would an ad- 
 ministrator, managing an estate in York, be excused for selling his crop 
 there, when it was notorious, or even probable, that it would command a 
 much higher price in Charleston ? Certainly not : for a jjrudent and 
 cautious man would send it on to Charleston to obtain the better price. 
 And precisely so herf^ ; if the defendant acted in good faith and with 
 the reasonable expectation of making a greater profit for the estate which 
 he managed, by sending on the cotton to Liverpool, instead of selling it 
 in Charleston, he has done all which the law requires of him. , Produce 
 is bought in Columbia to be sold in Charleston, and in Charleston to be 
 sold in Liverpool, on a profit ; and I cannot consent that a sale in the
 
 280 SOUTH CAROLINA EQUITY REPORTS. [*364: 
 
 market, where the highest price is expected to be obtained, should be con- 
 sidered as negligence by a settled rule of law. 
 
 ^„„.-, The report of the Commissioner as to the facts out of which *thi3 
 -J question arises, has not been brought up; and the Court is conse- 
 quently ignorant of the precise state of the markets in Charleston and 
 Liverpool, at the time the cotton was sent to market. There may have 
 been something which would have rendered the shipment imprudent, but 
 the Chancellor has founded his judgment on the ground that the defend- 
 ant was bound to sell in the markets of the country ; and as we cannot 
 concur in this, the case must go back to the Commissioner to ascertain 
 and report the facts. 
 
 It is therefore ordered, that the case be referred back to the Commis- 
 sioner, to ascertain and report to the Circuit Court, the facts connected 
 with the question before the Court. 
 
 O'Neall and Harper, Js., concurred. 
 
 Joel Ridgell, and Others, v. Philip Bethea. 
 
 The Act of 1824, authorizing Ordinaries to make partition of real estate not exceed- 
 ing in value one thousand dollars, applies only where the e7itire estate, in how 
 many districts soever situated, does not exceed that amount. [*?66] 
 
 If tlie Ordinary should be deceived as to the value, the title of a bona fide purchaser 
 will not be affected; but the facts should appear in his proceedings, and if it thus 
 appears that he did not inquire as to the value of the entire estate, or that it 
 exceeded one thousand dollars, his proceedings are void. [*3G6] 
 
 Before Chancellor Johnston, at Marion, February, 1835. 
 
 Bill for account and partition. The only question made in the case 
 was in relation to the real estate of the intestate, under the following facts, 
 reported by the Commissioner : " That Joel Ridgell, the intestate, lived 
 and died in Marion district, and Philip Bethea administered on his estate 
 there. He had, at his death, two tracts of land in Marion, and one in 
 Marlborough Application was made to the Court of Ordinary, in 
 Marion District, for partition of the two tracts there. They could not be 
 divided, and a sale was recommended and made — one tract to Philip Be- 
 thea for $512 ; the other to Charles Miles for $288 50. The evidence of 
 the value of these two tracts, adduced to give the Ordinary jurisdiction, 
 did not fix any definite value, but merely stated that they were not worth 
 $1000. Philip Bethea afterwards went to Marlborough, and adminis- 
 tered there. Application was made to the Court of Ordinary for parti- 
 tion of the land. The witnesses, as to its value, in order to give the Or- 
 dinary jurisdiction, testified that it was not worth exceeding $300. It 
 could not be divided, and was regularly sold by order of the Ordinary for 
 Marlborough, and bought by Philip Bethea for $100." The Commis- 
 sioner recommends that the sale be confirmed. 
 :^ogg-] *The plaintiff excepted to the Commissioner's report : 
 
 -" 1. Because the sale of the tract of land in Marlborough district 
 is null and void, having been made by the Ordinary of that district, 
 who had no jurisdiction.
 
 *366] COLUMBIA, DECEMBER, 1835. 281 
 
 2. That the Commissioner should have reported the sale void, and 
 recommended a re-sale. 
 
 JSrvin, for the appellants. 
 
 Graham, contra. 
 
 n.vRPER, J. It is a matter not without difficulty to give a proper con- 
 struction to the Act of Assembly of 1824, authorizing the Ordinary to 
 make sale or division of the estate, provided the value of such real estate, 
 to be ascertained by the Judges of said Courts of Ordinary resi)cctively, 
 upon the oath or oaths of a credible witness or witnesses, shall not exceed 
 $1000. We are satisfied, however, that the Act was only intended to 
 apply where the entire value of the estate, in how many districts soever 
 situated, does not exceed .$1000. Yet, both from the Act of 1799, (2 
 Faust, 315,) establishing Courts of Ordinary " in each district,^^ and from 
 the general law, we are also satisfied that no Ordinary can order the divi- 
 sion or sale of lands out of his own district. It results, that when apjili- 
 cation is made to the Ordinary for this purpose, it is his duty to inquire 
 the value of the entire real estate of the deceased, wheresoever situated 
 in the State, and not merely in his own district, and if it shall be found 
 not to exceed $1000, to order the sale of that portion which lies in his 
 own district. This construction is not without difQculty, but we cannot 
 discover any other practical one. 
 
 If the Ordinary, however, should be deceived by the evidence brought 
 before him, either through the fraud or mistake of the parties, or the igno- 
 rance or omission of witnesses, certainly the title of a bona fide purchaser 
 ought not to be affected. The Ordinary is a judge of a special jurisdic- 
 tion, and the circumstances which give him jurisdiction should appear on 
 the face of his proceedings. If it tlius appear that he did inquire respect- 
 ing the value of the entire estate, and that upon clear examination it was 
 found not to exceed $1000, then his judgment is conclusive, unless under 
 particular circumstances of fraud ; nor can parties afterwards be permitted 
 to show that the whole of the estate was not taken into the esti- r*3g'T 
 mate, or that its value exceeded $1000. He is the judge on both *- 
 points, and his judgment is conclusive. The latter point has been already 
 adjudged by this Court,* and the reasoning extends to the former. 
 
 But if it should appear from the face of the Ordinary's proceedings, 
 that he did not inquire respecting the value of the entire estate, or that 
 the value exceeded $1000, then he is without jurisdiction, and his ])roceed- 
 ings void. If, in such case, a purchaser be deceived, it is by his own 
 laches, for he might have inspected the proceedings. 
 
 In the present case, the proceedings of the Ordinary in relation to tlie 
 land in question are not before us, and the cause is remanded that the 
 matter may be inquired into and ascertained according to the views 
 herein expressed. 
 
 Johnson, J., and O'Neall, J., concurred. 
 
 * Chambers vs. Watson, 1 Bail. 511.
 
 282 SOUTH CAROLINA EQUITY REPORTS. [*367 
 
 Jacob R. Harley, and Elizabeth, his Wife, vs. Charles De Witt, 
 
 and Others. 
 
 The ten pound rule in regard to the liire of negroes is not an arbitrary rule of value, 
 but may be varied with the circumstances of the case. It imports no more than 
 that tlie trustee of a planting interest who renders no accounts shall not be 
 charged less than ten pounds per hand, and does not apply where greater profits 
 were or might ordinarily have been made. [*3G9] 
 
 Tlie rule does not apply where the hands were engaged in other and more profitable 
 pursuits than planting. [*370] 
 
 Guudian who is co-tenant with his ward liable for his rent, although he may not 
 have used beyond his own interest. He should have made her land productive. 
 [*37U] 
 
 Before Chancellor De Saussure, at Barnwell, February, 1835. 
 
 The bill alleges that George Bruton, the father of the plaintiff, Eliza- 
 beth, died intestate, possessed of a valuable plantation and several slaves 
 and other property, leaving a widow, and this plaintiff, his only heirs at 
 law ; that some time after, the defendant, De Witt, married the widow, 
 and administered on the estate ; and was appointed the guardian-in-chief 
 of the plaintiff Elizabeth, then an infant. That he took possession of the 
 plantation and slaves, and all the other property; and cultivated the land, 
 and worked the slaves and hired them out; sold part of the property, 
 including some of the slaves, and appropriated the profits of the planta- 
 tion and the labor and hire of the slaves, and the sales, to his own benefit, 
 without rendering satisfactory returns, either as administrator or guardian. 
 That the wife of the defendant, De Witt, and plaintiff's mother, has lately 
 died, and the plaintiffs are entitled to a distributive share of her estate. 
 The bill prays for an account *from De Witt, as administrator 
 and guardian, and for partition of his wife's estate. 
 
 No answer was filed, and the matters of account were referred to the 
 Commissioner. 
 
 On the reference, Richard Road, who had been for seven years an 
 overseer for De Witt, testified as to the rent of the land and negro hire, 
 and that De Witt was getting out timber for sale nearly all the time 
 he was with him. He planted cotton two years and worked all the men 
 hands two seasons on the railroad. Two other witnesses were examined 
 as to the value of the hire of the negroes and rent of the land. Their 
 evidence is not important. 
 
 Exceptions were filed to the Commissioner's report by both parties ; 
 but it is only necessary to notice those which were made the subject of 
 appeal, viz : on the part of the defendant : 
 
 1. That the Commissioner has allowed more than £10 per annum for 
 the hire of the negroes ; whereas defendant submits that the plaintiffs are 
 only entitled to £10 for full, and £5 for half hands. 
 
 2. That the Commissioner has charged the defendant with rent of the 
 plantation ; whereas he submits, that not having cultivated beyond his 
 interest, he was not chargeable with rent. 
 
 The Chancellor sustained these exceptions ; and the plaintiffs appeal 
 from his decision in these particulars. 
 
 _ Patterson, for the appellants, insisted that the £10 rule, as laid down 
 in Lyles u. Lyles, 1 Hill's Ch. 76, and other cases, was inapplicable to 
 
 *368]
 
 *368] 
 
 COLUMBIA, DECEMBER, 1835. 253 
 
 this case. Tliat the rule was only intended to furnish a standard ])y 
 which trustees should account, where regular accounts were not reported, 
 and in the absence of all evidence going to fix a higher rate of value. 
 That the actual value of negro hire was established in tliis case with 
 sufficient certainty, by competent and credible witnesses ; and their 
 opinion, especially as the negroes were not employed in ordinary culture, 
 should be taken in preference to an arbitrary rule of value, not applicable 
 to the circumstances of the case. That the defendant was bound to have 
 kept regular accounts of his receipts and expenditures, and failing in liis 
 duty in this respect, to diminish his responsibility by this arbitrary rule, 
 would be to permit him to take advantage of his own fraud, or negligence 
 equivalent to fraud. And as guardian and *trustee, he was re- r;icq<:>q 
 sponsible for the management of the plantation, and consequently L 
 liable for rent. Cited, Frazier v. Vaux, 1 Hill's Ch. Rep. 2U6 ; Hoven- 
 den on Frauds, 421 ; 13 Yes. 53. 
 
 Bellinger, contra. As to the £10 rule — Cited, Lyles v. Lyles, 1 Hill's 
 Ch. Rep. 86; Frazier u Vaux, lb. 206; 2 Eq. Rep. 499; 4 Eq. Rep. 
 270. As to the rent — Volentiue v. Johnson, 1 Hill's Ch. Rep. 49; 
 Lyles V. Lyles, lb. 86. 
 
 Johnson, J. The questions arising out of the grounds of this motion, 
 are : — 
 
 1. As to the rule by which the value of slave hire is to be ascertained. 
 
 2. Whether the defendant is bound to account to plaintiff for the rent 
 of the wife's land. 
 
 In the case of Lyles v. Lyles, 1 Hill's Ch. Rep. 87, and in some other 
 cases there referred to, the Court adopted the old rule of allowing £10 
 for the hire of full task hands as the standard of the value of slave hire, 
 not as an arbitrary rule of value, but the result of calculations founded 
 on observation and experience, and of coure lial)le to be varied by cir- 
 cumstances ; and notwithstanding the care that has been taken, it still 
 appears that the principle of the rule is not universally understood. 
 Where an estate in the hands of an administrator consists of lands and 
 negroes, it is obviously the interest of those entitled to it, that the negroes 
 should be kept together and employed on the lands, although the animal 
 income might fall short of what the slaves and lands might rent and hire 
 for; the lands would probably be less deteriorated in value, than in the 
 hands of a tenant who would feel no other interest in it than for the time 
 which he occupied it ; generally the slaves would be better jn'ovided for, 
 and more attention bestowed on the old and the young, than in the liands 
 of strangers, who would feel no sympathy for tiiem; and the object of 
 adopting the £10 rule, so far from being intended as a favor to the 
 administrator, was to charge him in the absence of regular accounts, 
 with the full value of what he might reasonably be sup[)osed to have 
 made with ordinary care and industry — and that will appear by referring 
 to the note annexed to the case of Lyles v. Lyles. Cotton estimated at 
 twelve and-a-half cents per pound, is the basis of that calculation, and in 
 Myers v. Myers, the evidence established that price, as the average of a 
 *series of years. If, therefore, the price of cotton should be greater (-jtco-T.^ 
 for one or more years, or the average price through a succession ^ 
 of years should be higljcr, the rule must be necessarily varied to suit the
 
 284 SOUTH CAROLINA EQUITY REPORTS. [*370 
 
 particular case, and a corresponding increase of hire allowed. Or, if 
 from adventitions circumstances, such as unusually productive lands, favor- 
 able seasons, and the superiority of the hands, greater crops than the 
 general average were actually, or might, with ordinary industry, have 
 been made, a corresponding increase of hire of slaves and rents of land 
 ought to be allowed. The rule imports no more than that the adminis- 
 trator shall not be charged with less than £10 per hand, where no 
 accounts are rendered, and certainly does not protect him where greater 
 profits were or might have been made with ordinary industry. Let us 
 suppose, for example, that the average price of cotton was twenty cents 
 per pound, and that two and a-half bags of 300 lbs. each was the aver- 
 age crop for a single hand, that would amount to one hundred and fifty 
 dollars; and if we deduct from this $51 54 the estimated expenses on 
 each hand, adopted in the note in Lyles v. Lyles, and which would not 
 be materially varied by the increased price of cotton, it would 'leave a 
 balance of $98 4G to be credited to the hire of the slave, for which the 
 administrator would be bound to account. The rule was never intended 
 to operate imperatively, but to supply a principle by which the extent of 
 the liability of persons standing in this situation was to be ascertained. 
 
 In this case, however, the slaves were employed but a small portion of 
 their time in planting, but for the most part in preparing timber for 
 market, and working on the railroad; and the necessary inference is, that 
 these were more profitable pursuits ; consequently a rule based on an 
 estimate of cotton planting cannot apply, and for the reasons before 
 given, the usual prices paid for hire, would be an unsafe rule. The 
 nett income which might be reasonably calculated on from these employ- 
 ments after deducting the probable expenditures, furnishes therefore the 
 only practical and safe rule, and the Commissioner will adopt it in the 
 reference which will be ordered. 
 
 As to the land rents. — The Chancellor is certainly correct in laying 
 down the rule, that if one of several co-tenants cultivates or uses no more 
 than his own share of the lands, he is not liable to his co-tenants for 
 rent ; but with great deference, it has no application to the case in hand. 
 *3T11 ^^ ^^ *''"^' ^^^® parties were co-tenants, but the *defendant stood 
 also in the relation of guardian to the plaintiff, Mrs. Harley, and 
 in that character he was bound to make her lands productive if he could, 
 and is liable, if he has neglected to do so. He must therefore account 
 for rents. 
 
 _ It is therefore ordered, that the case be referred back to the Commis- 
 sioner to examine and report to the Circuit Court on the matters before 
 noticed, according to the principles of this decree. 
 
 0'!vEALL, J., and Harper, J., concurred. 
 
 Peter Chewning v. Louisa Singleton. 
 
 A party who has lost a note payable to bearer although past clue, may come in 
 equity for relief. The ground of jurisdiction is not only that he may give indem- 
 nity to defendant, but that he must swear to the loss. [*373] 
 
 At Sumter, February, 1835. 
 
 This bill was filed against the defendant, as executrix and sole legatee
 
 *3T1] COLUMBIA, DECEMBER, 1835. 285 
 
 of Mrs. Anne Chewninj^, alleging that the testatrix, in her life time, for 
 a valnable consideration, gave the plaintiff her promissory note for $050, 
 payable to him or bearer, at ten days after date, and dated in September, 
 1832. That tlie note was seen ))y divers persons in his possession, and 
 that in October, 1832, (after the testator's death,) he lost his pocket book 
 and in it the note. That he has (through her agent) given tlie defendant 
 notice of the note and its loss, and demanded payment, which has been 
 refused. The bill prays that defendant may answer its allegations, and 
 that the payment of the amount of the note with interest may be decreed, 
 on such terms of indemnity to the defendant against any future liability, 
 as the Court may think proper to impose — and for general relief. 
 The bill was sworn to 15th January, 1834, and filed the same day. _ 
 The answer of the defendant denies any knowledge of her testatrix's 
 indebtedness to the plaintiff, or of the note, or of any transaction by 
 which such a debt could have been created. That shortly before the 
 testatrix's death, she heard her say she owed the plaintiff nothing; and 
 the defendant does not believe that any such note ever existed. She sub- 
 mits that the plaintiff has an adequate remedy, if any, at law, 
 
 ^Johnston, Chancellor. This case was heard upon bill and r*3>j2 
 answer. A motion was made to dismiss the bill for want of equity. 
 The motion is granted and the bill dismissed with costs. The note 
 alleged to be lost, and which the bill seeks to set up was, by the plain- 
 tiff's own showing, past due when it was lost ; and thus the necessity for 
 indemnity no longer exists. The bill is not a bill for discovery ; and if it 
 was, all evidence on the plaintiff's part is excluded, inasmuch as the 
 answer gives no discovery, but denies that such a note ever existed : and 
 the plaintiff has adequate remedy at law. 
 
 The plaintiff appealed, and now moved to reverse the decree on the 
 following grounds : 
 
 1. That the Chancellor erred in supposing that the necessity for in- 
 demnity is the ground of equity jurisdiction ; whereas it is submitted that 
 the indemnity is the condition which the Court annexes ; and that no 
 necessity exists to require the plaintiff to give it, can affect his claim to 
 relief 
 
 2. That there is no adequate relief at law, and Chancery will afford it. 
 
 Hoses, for the motion. The right of the Court to order indemnity 
 does not confer jurisdiction, for there are cases of lost bonds where in- 
 demnity has been ordered at law. Jeremy's Eq. Jar. 261. That the 
 note was past due cannot affect the right of relief; for if one finding the 
 note were to sue on it, before the defendant could get in the defence, she 
 would have to prove that it was lost or transferred after due. M'Cas- 
 kill V. Ballard, Col. May, 1832. In fact, that the note is due, should be 
 a strong reason for the Court to grant relief 
 
 The books are full of cases affording relief on lost bonds and notes, and 
 that too, after due. Walmsley v. Child, 1 Ves. 341 ; Ex parte Greenway, 
 6 Ves. 812-13; M'Cartney v. Graham, 2 Sim. 285; see also Tarleton 
 & Davis V. Benbow, 2 Bail. 423. The case of Mossop v. Eadon, 16 
 Ves. 430, was relied on as denying the right to relief. That case has 
 since been overruled bv Hansard v. Robinson, 1 Barn. & Cress. 90, and
 
 286 SOUTH CAROLINA EQUITY REPORTS. [*372 
 
 M'Cartney v. Graham, 2 Sim. 285. The plaintiff cannot have relief at 
 law, because he cannot prove the loss of the note. 
 
 W. Mayrant, contra. A party may recover, at law, on a lost note, on 
 5^oNq-| proof of its existence and loss ; and but slight evidence *of the loss 
 ^' -I will be required. Chitty on Bills, 170-1-2. Can he recover in 
 equity by his own oath of the loss ? In this case the alleged maker is 
 dead ; her executrix denies all knowledge of the note, and avows her belief 
 that it never existed. There is no proof offered. Will the Court sustain 
 such a claim against the estate of a deceased person, with no other proof 
 to support it than the oath of the party claiming ? 
 
 Harper, J. My views of this case may be gathered from what has 
 been said by me in the case of Davis & Tarleton v. Benbow, 2 Bail. 427. 
 I have again looked into the authorities on the subject, and find no reason 
 to change any of the views there expressed. It is not questioned but 
 that in some cases a party may come into equity to be relieved, when a 
 bill or note has been lost or destroyed. The cases of Walmsley v. Child, 
 1 Yes. 341 ; Ex parte Greenway, 6 Ves. 812, and many others, are suffi- 
 cient to establish this. The Chancellor seems to have decided chiefly on 
 the authority of Mossop v. Eadon, 16 Ves. 430. The Master of the 
 Rolls, in that case, went upon the ground that the only purpose of coming 
 into equity is to offer an indemnity, and as I gather from the argument 
 in the case, it appeared that the note was not payable to order, so that 
 it could not have been negotiated, and as no action could be maintained 
 upon it by any one into whose hands it might come, indemnity was un- 
 necessary. He therefore dismissed the bill. So the Chancellor supposes 
 that as the note in this case, as appears from the plaintiff's own state- 
 ment, was lost after it was due, there was no need of indemnity, But 
 with deference, this seems to me to be founded in misconception. The 
 plaintiff does indeed state that the note was lost after due; but who shall 
 assure the defendant of the truth of that statement? Plaintiff states that 
 he has no proof of the loss. . It is for defendant's benefit that the party is 
 required to come into equity. If an action had been brought at law, she 
 might well have said to the plaintiff, how can you assure me that you 
 yourself, have not negotiated the note before it became due, and that it 
 may not now be in the hands of a bona fide holder ? The right to indem- 
 nity would have been apparent. 
 
 But the case of Mossop v. Eadon, seems to have been overruled by 
 subsequent decisions. In the case of Hansard v. Robinson, 7 Barn. & 
 *3741 ^^'^^^- 90' t^^® ^'^^^ ^^^s ^ost after due. Lord Tenderden, *s|)eak- 
 -^ ing of the defendant, says : " But how is be to be assured of the 
 loss or destruction of the bill ? Is he to rely on the assertion of the 
 holder, or to defend the action at the peril of costs ? And if the bill 
 should afterwards appear and a suit be brought against him by another, 
 a fact not absolutely improbable iu the case of a lost bill, is he to seek 
 for the witnesses to prove the loss and to prove that the new plaintiff 
 obtained it after it became due ? Has the holder the right, by his own 
 negligence or misfortune, to cast the burden upon the acceptor, even for 
 not discharging the bill on the day it became due ? We think that the 
 custom of merchants does not authorize us to say that this is the law. Is
 
 *374] COLUMBIA, DECEMBER, 1835. 287 
 
 the holder, then, -withont remedy? Not wholly so. lie may tender 
 sufficient indemnity, and if it be refused he may enforce payment theie- 
 upon in a Court of Equity." In M'Cartney v. Graham, 2 Simons, 285,, 
 the bill had been indorsed specially to the plaintiff, so that no other 
 holder could maintain a suit upon it, and it was argued, on the authority 
 of Mossop and Eadon, that as no indemnity was needed, the remedy was 
 at law. But the Court said that Mossop v. Eadon had been overruled 
 by Hansard and Robinson. 
 
 Sir William Grant, in Mossop v. Eadon, seems to have overlooked a 
 ground of equity on which the greatest stress is laid by Lord Eldon — a 
 still higher authority. This is the necessity imposed on the party coming 
 into equity to make affidavit of the loss. In Ex parte Greenway, speak- 
 ing of the decision of the Court of law, in Read v. Brookman, 3 T. R. 
 151, that in case of a lost deed, profert may be dispensed with, he says ; 
 "It is questionable whether sufficient attention was paid to the considera- 
 tion, that in equity the conscience is ransacked, and the party alleging 
 that the instrument is lost, must make an affidavit that it is not in his 
 possession or power." And in Bromley v. Holland, 6 Yes. 20, "The 
 protection this Court gives in that case, is most essential to the interest 
 of justice. Here the party pledges his conscience by his oath that the 
 instrument is lost." East India Company v. Boddam, 9 Ves. 464, was 
 a case of a lost bond. Lord Eldou says, that " if the bond was by 
 a single obligee, the party sued in this Court, stating in his bill that 
 the bond was lost ; and accompanying his bill with an affidavit that it was 
 lost ; not as evidence of the loss, but as a security for the pro^yriefy of 
 jurisdiction.^' Instances are put in the cases of frauds which might be 
 practised by the wilful suppression* or destruction of the instru- r>|cq7K 
 ment, similar to what is suggested in Davis & Tarleton v. Ben- '- 
 bow. It may be observed that this applies still more strongly in the case 
 of a lost bill or note than in that of a bond or deed, as, in addition to the 
 danger of fraudulent suppression or destruction, there is additional danger 
 of the instrument's having been fraudulently negotiated. There is no 
 doubt, however, but that it was intended to apply in all similar cases. 
 Such is the view taken by Fonblanque, in his notes to the Treatise of 
 Equity, (1 Fonb. 15, 16, It, n. f.) and by Lord Redesdale, (Mitf PI. 
 105-6.) 
 
 It is ordered and decreed that the Chancellor's decree be reversed, and 
 the cause remanded for hearing. 
 
 Johnson, J., and O'Neall, J., concurred. 
 
 S. C. MuLDROW, and John B. Bruce, Trustees, v. Isaiah DuBose, and 
 
 Others. 
 
 A bill by trustees to mai'shal assets and callina; in creditors, after decree made, 
 directing money to be paid in and creditor's claims estaljllslied, will not be dis- 
 missed at the instance of one of the plaintiffs, his co-plaintiff and the creditors 
 objecting. [*377] 
 
 Plaintiffs accepted a trust from B. K. Benton, as folfows, viz : that
 
 288 SOUTH CAROLINA EQUITY EEPORTS. [*3T5 
 
 they would bold and manage certain property conveyed to them by 
 Benton, for the benefit of Benton's creditors, his wife and children. The 
 creditors pressing on them for payment, some of them having judgments, 
 Muldrow & Bruce, (the former being the principal manager and actor in 
 the matters,) filed this bill, calling upon the creditors to come in, estab- 
 lish their demands, and receive t/ieir jDot^tions, and praying an injunc- 
 tion against the creditors, as to other ^proceedings. The injunction was 
 granted, and other creditors came in. At February Term, 1834, an 
 order was made by consent against Muldrow and Isaiah DuBose, (who 
 it appeared had all the funds then remaining — the property conveyed, 
 having been sold under the deed,) that they should pay six hundred 
 dollars each to the Commissioner, by the first of October, then next, to be 
 applied to the claims of the creditors. In the Spring of 1834, Muldrow 
 gave to a creditor in Court, his notes for one thousand dollars, which 
 were received by said creditor as so much towards the payment 'of his 
 claim already established before the Commissioner to a greater amount; 
 5^q'-/>-] which, with some smaller amount paid by *Muldrow, to one or 
 
 * -' two of the other creditors, amounted to as much as he admitted to 
 be due by him to the trust fund. A further amount of from nine hundred 
 to one thousand dollars was claimed, after giving the notes above alluded 
 to, and before the 1st October, 1834, Muldrow removed from this State, 
 to the West, and wrote word to have his bill dismissed. The creditor to 
 whom the notes were given was the largest but not the only creditor, and 
 the amount due by Muldrow, was not the only available fund. (DuBose 
 owed considerably.) It is not known that anything was said by Muldrow 
 and the creditor, as to the application and receipt of the notes being 
 instead of the six hundred dollars ordered to be paid to the Commis- 
 sioner, though doubtless, they at the time supposed that such would be 
 the eftect ; yet this supposition, on the part of the creditor at least, was 
 coupled with the understanding that the case would go on to a close, and 
 the matters be finally decided by it. A dismission of the bill by Muldrow, 
 after he had left the State, was never thought of by the creditor, nor 
 intimated by Muldrow to him. 
 
 In this stage of the proceedings, a motion was made by Muldrow, at 
 February, 1835, to dismiss the bill ; and resisted by Bruce and the credi- 
 tors, on the ground that it would operate a fraud upon them — especially 
 upon the creditors, whose claims would be delayed, and possibly barred, 
 before they could again establish them. 
 
 The Chancellor refused the motion, and this is an appeal from his 
 decision. 
 
 Ervin, for the motion. 
 
 Wilkins, contra. 
 
 O'Neall, J. In a case situated like the present, I think the bill 
 cannot be dismissed by the plaintiff. It is true, this Court went very 
 far, in Bossard v. Lester, 2 M'C. Ch. Rep. 419, in holding in a case in 
 which the defendant had filed a cross bill, and there had been an order 
 referring the accounts, that the plaintiff might dismiss his bill. The fact, 
 in that case, that the defendant had asked and obtained leave to withdraw 
 his cross bill, constituted a strong reason why a similar indulgence, that
 
 *376] COLUMBIA, DECEMBER, 1835. 289 
 
 of dismissing his bill, should be allowed to the plaintiff. The Court in 
 that case, however, very distinctly recognize the doctrine, that after the 
 decree settling the rights of the parties, the plaintiff cannot dismiss the 
 bill 
 
 *This case is a bill by the trustees, admitting a fund in their 
 hands to which creditors are entitled, and calling on them to come L 
 in and prove their demands ; and praying for an injunction to restrain 
 them from proceeding at law. The injunction was obtained ; and subse- 
 quently a decree for the payment into Court, of a sum admitted to be in 
 their hands : this sum it seems has been paid to one or more of the 
 creditors — a further sum is claimed from one or both of the trustees. 
 Muldrow alone moves to dismiss the bill : this is resisted by Bruce, the 
 other trustee, and the creditors who have come in and proved their 
 deaiands. 
 
 In Lashley v. Hogg, 11 Ves. 602, there was a decree for an account 
 with the usual direction for an advertisement for creditors : a petition 
 was presented under an arrangement, with the consent of all parties 
 and all the creditors who had come in, the time having expired for 
 dismissing the bill and disposing of the fund in Court. The Lord Chan- 
 cellor said he could not dismiss the bill after a decree, except upon a 
 re-hearing or appeal. But the object as to the disposition of the funds 
 might be obtained by consent upon further directions, though the time 
 bad elapsed ; yet the Court will let in creditors at any time, while the 
 funds is in Court. 
 
 That case was a much stronger one for the dismission than this; there, 
 all parties consented to the dismission : but as there had been a decree 
 for an account, the Chancellor refused to dismiss the bill. In this case, 
 a part of the fund had been decreed to be paid, and other creditors had 
 come in and proved their demands. It cannot therefore be, that this 
 plaintiff, Muldrow, against the wish of his co-plaintiff, Bruce, and all the 
 creditors, should be allowed now to dismiss his bill. The Chancellor 
 was right in overruling his motion : — his decision is affirmed. 
 
 Johnson, J., and Harper, J., concurred 
 
 Thomas D. Davis, v. L. B. Davis, Administrator. 
 
 An executor or administrator who litigates in good faith, shall be 
 allowed costs out of the estate : but where, with sufficient funds in his 
 hands, he suffers himself to be sued, having no *just defence, he r^o-o 
 must pay the costs himself. On judgment by default, he would be ^ '^' 
 liable for the costs de bonis piropriis at law; (Giles v. Pratt, 1 Hill, 
 244,) and in Equity, he can only be excused by showing a want of funds. 
 
 Ex parte, J. B. Miller, Commissioner. 
 The Act of 1824, p. 21, requiring Masters and Commissioners to
 
 290 SOUTH CAROLINA EQUITY REPORTS. [*378 
 
 report, annually, to the Court, " what guardians and trustees have not 
 annually made their returns," and "to set apart certain days for reference 
 of such accounts, &c.," was intended to protect wards and cestui que 
 trusts whose funds were under the control of the Court, and not to 
 impose duties oli the Commissioner, which would be impossible or useless 
 and nugatory : And therefore the Commissioner is not guilty of any 
 neglect of duty in not reporting to the Court, the case of a guardian who 
 had finally settled with his ward, and that fact had been before reported 
 to the Court; or where a guardian was dead, and his death had been 
 previously reported ; or where a guardian had removed from the State, 
 and which had been before reported. 
 
 [The following case was decided, in Charleston, March, 1835, but not 
 received iu time for publication with the cases of that Term. J 
 
 Frederick Fable, Elizabeth Fable, and Catharine Franks, v. 
 Alexander Brown, Executor of John Fable. 
 
 The civil law may be consulted in explanation of our law, but not as authority 
 [*390] 
 
 The common law doctrine of villeaage, does not apply to the condition of slavery 
 here. [*390] 
 
 The status of our slaves ascertained by reference to what was anciently held to be 
 the condition and disabilities of alien enemies and Pagans. [*o92] 
 
 The anomalies in the conditon of our slaves referable to our own legislation. [*395] 
 
 A slave being a personal chattel, is incapable of holding property in his own right, 
 and the possession and title must be referred to his master. [^39G] 
 
 Whether a bequest is given absolutely, depending on the friendship and good will of 
 the legatee to deal with it as testator recommends or conditionally and coupled 
 with a trust, depends on this: if it was intended that he should have it entirely 
 in his own power and discretion to make the application or not, it is absolutely 
 given ; but if, on the face of the will, there is declaration plain, that he is to take 
 it in trust, though the trust be not declared or ineifectually declared, or become 
 incapable of taking effect, the party taking shall be a trustee for those who would 
 take either under the will or at law. [*398] 
 
 Where a testator directed his executor out of the funds of his estate to purchase 
 a slave, (his son,) — Ile/d to be an attempt to evade the law against emancipation, 
 and if purchased, the slave would become part of the estate. [*399] 
 
 Applying the doctrine in respect to alien enemies to the condition of our slaves, it 
 was held: that as an alien enemy may take lands but cannot hold ; and as a chose 
 in action given to him is not void, although he cannot maintain an action on it; 
 so a slave may take, but cannot hold land, and his master could only hold until 
 ofBce found for the State ; and so of a legacy given to a slave it is not void, but 
 it cannot be recovered from the executor by either slave or master, but may 
 escheat to the State in the hands of the executor. Therefore where testator by 
 his will gave his estate to his children who were slaves, a bill filed by the next of 
 kin against the executor was dismissed. [*400] 
 
 Charleston — January, 1832. 
 
 The following decree of the Chancellor presents a full statement of the 
 case : — 
 
 De Sausstjre, Chancellor. John Fable, a foreigner, settled in Charles-
 
 *378] CHARLESTON, MARCH, 1S35. 291 
 
 ton some years af?o, and acqnircd some property, of wliich *a r^^Qtrn 
 house and lot in the city constitntes the principal and most valu- I ^'"^ 
 able part. He had two (illegitimate) colored children by a female slave. 
 Before his death, he made and duly executed his last will and testament, 
 on the 24th June, 1831, by which he beCiueathed as follows: — He desired 
 his personal effects to be immediately sold, and out of the moneys arising 
 therefrom, he directed his debts and funeral expenses to be })aid. If that 
 fund should not be sufficient, then the executor might sell any other of 
 his property, to satisfy all claims justly due and unpaid out of his })crsonal 
 property. He bequeathed a legacy of $100, to be divided equally among 
 the children of his brother, Frederick. He then says : " The residue of 
 my property I will and bequeath to my children, whom I acknowledge, 
 to be divided share and share alike — whatever real estate I am now pos- 
 sessed of, it is my will that it should be sold, and the proceeds vested in 
 any public stock of this State, or of the United States. The interest arising 
 from the stock so invested, to be appropriated to the support of my son, 
 John, and daughter, Elizabeth, at the discretion of my executor, whom I 
 constitute and appoint as the guardian of the said John and Elizabeth. 
 It is further my desire that my executor will purchase, if practicable, ray 
 son, out of the funds of my estate, previous to a division of the same." 
 The testator appointed Mr Alexander Brown, the executor of his will. 
 He died not long after, and Mr. Brown ]iroved the will and qualified 
 thereon as executor. The legatees are living. Both the children are in 
 servitude, and held by the game owner. The personal estate, it is said, 
 wall pay the debts, and perhaps leave some surplus. The plaintifls claim 
 to be the next of kin of the testator, and claim his estate as distributees 
 thereof alleging that the provisions of the will in favor of the illegitimate 
 colored children of the testator, who are held in slavery, cannot lawfully 
 take effect, and therefore as the property is not well and effectually dis- 
 posed of, the plaintiffs are entitled thereto. The defendant, the executor, 
 resists the claim of the plaintiffs on the ground that the plaintiffs have 
 not sufficiently established their relationship to the testator, or that they 
 are the only persons in the degree of relationship which entitles them to 
 the distribution of the estate supposing it distributable. The evidence, I 
 think, establishes sufficiently that the plaintiffs are the relations entitled 
 to distribution, if there be any distributable estate. The evidence of Mr. 
 Abraham Buchan, as delivered in the Court, is clear, that *he r:):oon 
 knew John Fable fifteen years before his death. He heard him •- 
 say that he had a brother named Frederick, in Philadelphia, and two 
 sisters, his only relatives in this country ; he did not say that he had any 
 other relatives. Witness knew all the family. There are no more of 
 them. Both sisters were named. One of them died before her brother, 
 leaving two children. John Fable died in July, 1831. The depositions, 
 which were read but not delivered to me, are not so clear as to the re- 
 lationship. But there is sufficient before the Court to go on with the 
 cause. Some of the plantiffs are entitled, if there be anything for dis- 
 tribution, and further inquiries can be made as to that point, if it should 
 be found necessary. Another, and the most important objection to the 
 recovery of the plaintiffs, is that the property of the testator is effectually 
 disposed of by his last will and testament, and there is nothing undisposed 
 of which remains to be distributed to the next of kin. The executor,
 
 1 
 
 292 SOUTH CAROLINA EQUITY REPORTS. [*380 
 
 lieing desirous to perform the duties imposed on him, by the will of the 
 testator, in his answer submits the following questions to the Court for 
 its direction : — 
 
 1. Whether he is bound or at liberty to purchase the boy, John, (his 
 mistress being willing to sell him) out of the funds of the estate, and to 
 divide the residue of the estate (if any) between the said children, John 
 and Elizabeth ; and to sell the real estate and vest it as directed by the 
 will, and pay over the income arising therefrom, at his discretion, to the 
 said children of testator. 
 
 2. Whether he is bound to pay the residue of the personal estate, 
 (after payment of debts and legacies aforesaid) and the income of the 
 stocks to be purchased with the proceeds of the real property to the 
 owner of the said children (John and Elizabeth.) 
 
 3. Whether he is not bound to pay over the whole residue of the per- 
 sonal estate, to the said owner of the slaves. 
 
 The questions involved in this case, are certainly important and diffi- 
 cult, and were so considered by the bar in the argument, though they 
 were not as fully argued as is customary with the gentlemen of the bar. 
 There is one point, which it is as well to put out of the way at once. — 
 Our statute prohibits emancipation — there is no attempt at emancipation 
 in the will we are considering. It leaves one of the colored children of 
 the testator in slavery to the present owner. It directs the executor to 
 purchase the other child from his owner. But it does not direct his 
 ^„„,-, emancipation. The executor is bound to purchase him, and *he 
 -^ must take the bill of sale, or title deed to himself. This is no 
 violation of our statute, and can, and ought to be carried into effect. In 
 what way he shall treat the boy, and how employ him, is for his own dis- 
 cretion, in which the testator had unbounded confidence. We are next 
 to consider the question, whether the dispositions in the will respecting 
 the property can, or ought to be carried into effect. The executor may 
 certainly sell the property as he is directed by the will — the difficulty is, 
 will he be justified or permitted to apply the income arising from the 
 sales, for the support of the slaves, according to his discretion, as direct- 
 ed by the testator. The objection may come from two quarters. The 
 plaintiffs may, and do contend, that the property, or the proceeds of it, is 
 not so legally disposed of by the will as to be effectual, consequently it is 
 undisposed of ; and that whenever a legacy is so given that it cannot take 
 effect, it sinks into the estate, and is distributable. It may be further 
 contended, and it was so argued at the bar, that if those legacies could 
 not be effectual for the slaves, they would take and hold for their master 
 or mistress ; and that would defeat the plaintiffs' claim. On the first 
 point, the plaintiffs relied on a decision made by me twenty years ago, 
 and reported in 4 Eq. Hep. 26G, Executors of Walker v. Bostwick & 
 Walker. In the report of that case, the devises and bequests are not set 
 forth. But it is said, the principal question made in the case, was whether 
 the devises and bequests of real and personal estate made by the testator, 
 Joseph Walker, to trustees in trust for his slave, Betsey, and her three 
 children, are valid devises, and can take effect. There was a bequest of 
 freedom to those slaves, which failed. The judge was of opinion that 
 the legatees, being slaves, were incapable of taking such devises under 
 the will, and therefore the legacies sunk into the estate, and were appli-
 
 *381] CHARLESTON, MARCH, 1835. 293 
 
 cable to pay debts, &c. In that case, the estate was greatly embarrassed, 
 and there was no tittle of anything left. The point was not very fully 
 argued, and there was no appeal. Reliance was placed on one authority, 
 that of Taylor's Elements of Civil Law, (429.) (See also Cooper's 
 Justinia, 411,) by which it is laid down that, by the civil law, slaves 
 could not take property ))y descent or purchase; which was considered 
 to be the law of this country. 
 
 Mr. King, in his argument for defendant, in the case we are now con- 
 sidering, contended that the argument laid down by Taylor, *is rjcqog 
 not sustainable unqualifiedly by the authorities, and that even if L 
 the slave legatee cannot hold for himself, he may take and hold for his 
 master — and that would be sufficient to defeat the plaintiffs, and it would 
 be for the master afterwards to decide what use he would make of this 
 advantage. There is certainly considerable difficulty in this, and other 
 questions which arise out of the conditions of slaves. Our statute con- 
 siders them as chattels, yet, in many cases, they are treated by our laws 
 as persons, and reasonable persons accountable for their actions. They 
 are punished for crimes, which chattels could not be. It is their equivo- 
 cal condition which creates the difficulty. It was argued, that by the 
 civil law, persons capable of being executors, are alone capable of being 
 legatees, (Domat, 143,) and that slaves cannot he executors by our law. 
 This is true. But I am not sure that the civil law rule would apply in 
 all respects to the condition of our slaves ; at least I would not venture 
 to pronounce upon it until the case arose, and it was fully argued. I am 
 rather inclined to think that the will of the testator can be carried into 
 effect in this case, without deciding the refined questions which have been 
 made in the argument. I put out of the case the directions, as to the 
 personal property, because it was stated and understood that the personal 
 estate would scarcely do more than pay the debts, and the legacy of one 
 hundred dollars to the relations of testator. The real estate is directed 
 to be sold, and the proceeds vested in stock, and the interest to be ap- 
 propriated to the support of the testator's son and daughter, at the dis- 
 cretion of the executor. The direction to sell the estate is not against 
 law. The direction to invest the amount of sales is not prohibited. Is 
 it against law to direct the executor to apply the income to the support 
 of two slaves ? There is no direct prohibition by any statute ; it is only 
 by inference from their condition, that such prohibition can be presumed 
 to arise. But suppose the testator had directed the executor to expend 
 one hundred dollars annually, in support of a favorite old horse, for past 
 service, would not the executor be justifiable in doing so ? Would he 
 not be bound to do so, in order to give effect to the will ? If he did it, 
 and the charge appeared in his accounts, could his distributees or resid- 
 uary legatees legally object to it ? I think not. Upon the wliole, there- 
 fore, I am of opinion the executor may, and ought to give efi'ect to the 
 will in this case, and that the plaintiffs ^claiming to be distribu- r-rfjooq 
 tees, are not entitled to call the executor to account for ])erforra- L 
 ing the will of the testator on tliis subject. The owner of the slaves is 
 not before the Court ; and if she has rights, they are not now in ques- 
 tion. 
 
 It is therefore ordered and decreed, that the bill of the plaintiffs be 
 70L. 1— 42
 
 294 SOUTH CAROLINA EQUITY RErORTS. [*383 
 
 dismissed, but without costs. I would desire that an appeal should be 
 made. 
 
 The plaintiffs appeal from the decree of the Chancellor, upon the fol- 
 lowing grounds : 
 
 1. That by the laws and statutes of this State, no slave is capable of 
 acquiring a title, either at law or in equity by descent, or by purchase, 
 to any property, real or personal. 
 
 2. That the bequest and devise to the slaves, John and Elizabeth, in 
 the present case, are null and void, by reason of their incapacity to take ; 
 and that the property thus disposed of, is distributable among the plain- 
 tiffs, as next of kin. 
 
 3. That as a slave is incapable, under our laws, of acquiring a title to 
 property, the owner of the slaves in the present case cannot be permitted 
 to claim a title through the said slaves. 
 
 4. That the civil law on the subject of slavery, is not the law' of this 
 State ; that this subject is under the -exclusive regulation of our own 
 statutes, and that the decision of the Chancellor in the case of Walker i'. 
 Bostwick, in 4 Eq. Rep. 206, is in strict accordance with the laws and 
 policy of this State. 
 
 5. That if by possibility, said bequest and devise could be allowed to 
 take effect, it would be only as to the income from the residue, during the 
 life of said John and Elizabeth, and at the expiration thereof, the property 
 itself would pass to the plaintiffs. 
 
 6. That the negro John, if purchased by the executor, will constitute a 
 portion of the testator's estate, and be distributable among the plaintiff's, 
 as the next of kin. 
 
 F^nleij, for the appellants. The devise to the testator's children, who 
 are slaves, is null and void ; for a devisee must be a person known in law, 
 and capable of taking. Slaves are not recognized by our laws as having 
 any rights, and they are incapable of taking and holding property. 
 Walker v. Bostick, 4 Eq. Rep. 266. 
 
 Is that case law ! On this question, we must look only to our own 
 *'^S41 *peculiar code, differing both from the civil and common law in 
 -^ many particulars. The civil law, which recognizes the condition of 
 absolute slavery, may be looked to for explanation, but it is not binding 
 as authority. The Act of 1740, P. L. 163, declares slaves to be chattels 
 personal "to all intents, purposes, and constructions whatsoever." How 
 then can a chattel have rights, or hold property ? Or how can a slave 
 enforce his right ? He is incapable of maintaining a suit. Is there any 
 authority for exempting a slave from the general disability which his cha- 
 racter of chattel imposes ? There is none. For some purposes, they are 
 regarded by the Act of 1740, and other statutes, as persons — that is, in 
 relation to crimes, — their moral responsibility is recognized for the safety 
 of society ; but as regards civil rights, they are mere chattels. By the 
 civil law, whatever the slave acquires by bequest or otherwise, belongs to 
 the master. Just. Lib. ii. Tit. ix. § 3, 4. Does this rule become a part 
 of our law ? By the same law, a slave could be an executor, 2 Domat, 
 143. He could make contracts. Just. Lib. iii. Tit. xviii. He could 
 trade, and hold his peculium, Just. Lib. iv Tit. vii. § 4. The slave of 
 the civil law was a white man, and when emancipated, became a citizen ;
 
 *384] CHARLESTON, MARCH, 1835. 295 
 
 whilst here emancipation is expressly proliibited, and those alrcarly eman- 
 cipated, are denied many civil rights. The civil law rules have not been 
 adopted in this State ; for in the case of Sally, 1 r3ay, 258, it was held in 
 opposition to the civil law, that a slave might by her acquisitions pur- 
 chase the freedom of another, and the purchase did not result to the use 
 of the master ; the same doctrine was held in Gregg v. Thompson, 2 Con. 
 Rep. 31. The 34th clause of the Act of 1740, subjects property in the 
 hands of a slave to forfeiture. (See also Blake v. Clarke, 3 M'C. 279 ) 
 It appears then from our statute law, and the decisions of our Courts, 
 that the civil law does not apply here, at least, as having any binding 
 authority. And although the common law was adopted generally, the 
 ancieut tenures were excepted ; and the doctriue of villenage does not 
 apply to the condition of slavery here; for at common law, the villein 
 had civil rights against every one except his lord. Coke, Lit. 123, b. 
 124, a. 118, a. And he might acquire real or personal estate, and if 
 aliened before seizure, the lord could not avoid the sale. 
 
 But conceding the devise to the slaves to be valid — can it extend beyond 
 a life estate? For they can have neither heirs, nor *executors. r^ooc 
 And if the executor should purchase John, would he not become L 
 the property of the estate? 2 Fonb. 118. When an estate is devised on 
 trusts which cannot be carried into effect, the trusts result for the benefit 
 of the next of kin, 1 Mad. 61 ; 4 Yes. 433 ; Morice v. Bishop of Durham, 
 9 Ves. 399 ; Gibbs v. Rumsey, 2 Ves. and Beames, 294. 
 
 Can the Court sustain the direction to the executor, to maintain the 
 slaves ? How is this practicable ? Or what right has the executor to 
 interfere in any way with the slaves of another, even by maintaining them ? 
 But at all events, the direction cannot extend beyond their lives, and a 
 trust in the fund must then result for the next of kin. Geiger v. Brown, 
 4 M'C. 427. 
 
 irCrady, contra. Slaves had long been recognized by our laws before 
 the Act of 1740, but wherever that Act prescrilDes a rule in regard to 
 them, it is imperative ; it does not, however, materially conflict with the 
 civil law in relation to slavery. We have the authority of this Court for 
 saying that the civil law does apply to the condition of slavery in this 
 State, in the case of Wingis v. Smith, 3 M'C. Rep. 400. Slaves are 
 property, and are called chattels in the Act of 1740, but merely as giving 
 character to this species of property, and in contradistinction to realty. 
 The Act was not intended to alter their condition, or to deprive them of 
 any privileges which they had before, except in those particulars enume- 
 rated therein. Under the Act, a slave may hold any property, except 
 as there expressly prohibited. And if he cannot hold for his master, 
 what security is there for property ? Although chattels, they are human 
 beings, and the objects of benevolence. The master has not absolute 
 dominion over his slave, for he is protected by law in the enjoyment of 
 life. 
 
 It does not follow because the slaves cannot maintain a suit to enforce 
 the execution of the trust, that it is void. An outlaw or an alien enemy 
 may be a legatee, notwithstanding he cannot sue. 3 Bos. & Pul. 113. 
 So a legacy to an infant in ventre sa mere is good, although no suit can 
 be brought immediately. To make the trust void, it must appear that it
 
 296 SOUTH CAROLINA EQUITY REPORTS. [*385 
 
 is prohibited by law ; and although there may be no one capable of en- 
 forcing the trust against the executor, if it be not prohibited, its execution 
 may well be left to himself. Is the trust to maintain the children prohi- 
 bited ? By what law ? It may be impolitic, but it is not, therefore, 
 illegal. A trust to support bastard children may be very impolitic, but 
 ^„„„-, is ^nevertheless good, and will be enforced. So devises to cha- 
 -l ritable uses, but before the statutes of mortmain they were good. 
 
 Slaves are not absolutely incapable of taking property They may 
 acquire and hold for the benefit of their master. Suppose a slave find 
 money ; cannot the master claim it against all the world, except the owner ? 
 Suppose a slave saves something from a wreck, cannot his master libel for 
 the salvage ? In the case of the brig Ariel, salvage was allowed to a 
 slave, as a person. 
 
 There is no action at law for a legacy. It is given to the executor in 
 trust to execute the testator's intentions, and if these are contrary- to law, 
 a trust results in favor of the next of kin. 
 
 Cases are cited on the other side to show that if the property be not 
 effectually disposed of, a trust results for the next of kin ; but there is no 
 question that the estate here is effectually disposed of, for if the slaves, as 
 such, cannot take, their owner can, and is entitled to the legacy, both by 
 the civil and common law. The civil law has been held to be more 
 directly applicable to their condition ; and it is conceded that if it applies 
 to this case, the owner is entitled to the legacy. 
 
 King, on the same side. The plaintiffs are citizens of a non-slavehold- 
 ing State, seeking to entail slavery on the children of their brother. So 
 far, then, as the mere justice of the case is concerned, they have no claims 
 on the Court. 
 
 Can the slaves, the children of the testator, take under this will ? There 
 is no statutory provision prohibiting them ; and the case of Walker v. 
 Bostick, 4 Eq. Rep. 266, is anomalous in its character, and unsupported 
 by authority. As there is no statute, the common law is the only law 
 which can apply to the case. 
 
 The Act of 1712, making the common law of force in this State, ex- 
 cepted the ancient tenures. Villenage tenure, therefore, never existed 
 here. Yillenage, as a common law status, was made of force here. Vil- 
 lenage regardant was attached to the manor, and was not made of force 
 here. Villenage in gross belongs to the person of the master; and this 
 is the condition of slavery here. What was the condition of the villein at 
 common law ? Quicquid acquiritur servo acquiritur domino. Co. Lit, 
 116, a. 117, a. 119, a. ; Smith v. Stapleton, Plow. 435. "All acquisi- 
 tions of property, real and personal, made by the villien, in whatever way 
 5,cgg^-j arising, &c., belonged to his Lord " Hargrave's notes(116) to*Co. 
 Lit. 117, a. This common law rule is of force in this State, as appli- 
 cable to the condition of our slaves, and the Act of 1740 recognizes it by 
 the exceptions which have been tlierein made to it. The case of Gregg 
 y. Thompson, 2 Con. Rep. 331, is rather in opposition to this rule, but 
 it excepts the very case before the Court : — "That when it is said that 
 whatever they acquire become their master's, it is meant whatever they 
 absolutely acquired by gratuity, &c., of others." So that this case does 
 not decide that a gratuity to the slave would not be the master's ; but
 
 *387] 
 
 CHARLESTON, MARCH, 1835. 297 
 
 only that as to contracts made with a slave, if the master approve, the 
 benefit belontjs to the slave. 
 
 For the civil law doctrine, see Poth. Civ. Law 24; Taylor's Elements 
 of Civil Law, 429. In the case of Sally, 1 Bay, 260, C. J. llutledse 
 held, in exact conformity to the common law doctrine, that tlie actpiisi- 
 tion of the villein aliened before seizure by the lord, was good. 
 
 The slaves may take the gratuity under the will. Whether they can 
 take more than a life estate, must depend on the will. If they take at 
 all, they take absolutely. The case of Brown v. Geiger does not apply ; 
 the estate there was expressly limited for life. But when it is a general 
 bequest, the estate is absolute. 2 Roper on Wills, 33L 
 
 Is not the execntor the haeres f actus nnder the will, and authorized to 
 do exactly what the testator himself could have done? Unless there is 
 something in the will to the contrary, the whole property is in the execu- 
 tor. In the Executors v. the Heirs of Radclitte, the testatrix merely 
 made her will naming her executors without making any disposition of 
 the property ; and it was held that he was a trustee for the next of kin : 
 but in this case the executor is directed to take and hold against the next 
 of kin ; the implication cannot therefore arise. — See Wilson v. Wilson, 
 8 Bin, 562, opinion of Yates, J. 
 
 Grimke, in reply. This case is interesting, both as to the principles 
 of law involved, and the general policy of the State. If the defeudant 
 succeed, the decision will endanger the safety of our domestic institu- 
 tions. 
 
 Where are we to find the principle by which to decide this case ? It 
 is said, in the common law. What common law ? Not that which was 
 adopted in 1712. The doctrine of villenage was *then obsolete, i-^qqq 
 Villenage never existed in Pennsylvania, 1 Dallas, 167, and never L 
 in South Carolina ; and the exploded and obsolete doctrines of the com- 
 mon law in relation to it, have no application in the case. The civil law, 
 as it has come down to us, is a Roman statute of Justinian. We cannot 
 adopt it as our guide, nor be governed by it as authority. The slave, 
 both of the common and civil law, was regarded as having a i>tat,us in 
 society, in relation to other persons than his master. Not so here. — 
 Color here is prima facie evidence of slavery. Not so in England or 
 Rome. In Rome and Greece the mechanic arts and trade were consid- 
 ered degrading, and committed exclusively to slaves. No such idea is 
 entertained here. As, then, the condition of our slaves is different from 
 that of the villeins of England and the slaves of Rome, and as our cus- 
 toms and policy are widely at variance from theirs, neither the civil law 
 of the one, nor the common law of the other, applies to the state of 
 slavery here. We mnst look then to our own legislation, founded on our 
 own peculiar policy, in order to fix the condition of our slaves. 
 
 In 1683, 1690, and 1696, Acts were passed for the regulation of sla- 
 very. The Act of 1740 is a mere recognition of the stafiifi of the slave, 
 before and at the time of its passage. Slaves were regarded as bona et 
 catalla, before that time. And so, too, they are regarded by the civil 
 law. By that Act they are declared goods and chattels, "to all intents, 
 purposes and constructions whatsoever ;" and this excludes the conclu- 
 sion that in any point of view, (except where so regarded by statute,)
 
 298 SOUTH CAROLINA EQUITY REPORTS. [*388 
 
 they are to be considered as persons. The Acts of ISOO and 1820, show 
 tliat slavery is regarded >as a political sul)ject, by imposing restraints on 
 the master in regard to emancipation. The general rule for the guide of 
 our Courts must be, what will best promote the views of the people as 
 expressed in the legislative enactments in relation to this class of persons. 
 The legislature has fixed the character of the slaves as bona et catalla in 
 every point of view, except where it makes them persons — as in relation 
 to crimes. But in all civil matters they are mere chattels, and the mere 
 agents or instruments of their master. As then the slave has no civil 
 rights, as he is a mere chattel, and as there is no statutory provision au- 
 thorizing him to take, he is wholly incapable of taking a legacy under a 
 will, either directly or indirectly. In Sally's case, 1 Bay, 360, the deed 
 *QQql ^^ emancipation from the master, prevented a recovery* — not that 
 -' the slave could acquire property. No one can take through a 
 trustee, who cannot take directly. An alien can take, but cannot hold. 
 In North Carolina this question has been adjudged. It was there held, 
 that a slave cannot take by devise. — Cuniiingham's heirs u. Cunningham's 
 executors, Cam. & Norwood's Rep. 353 ; and in the same case, Taylor's 
 Rep. 209, that a devise for the maintenance of a female slave and tlie 
 children is void. That the condition of slaves does not depend on the 
 feudal or civil law. — See 5 Harris & John. Rep. 190. We must look to 
 our peculiar policy as indicated in our own legislation, and in that we 
 find, that to interfere with the slaves of another is prohibited. The ef- 
 fect of allowing the devise in this case, would be to render the slaves dis- 
 contented. It would go further. It would defeat the law against eman- 
 cipation ; for they would become quasi free persons. 
 
 As to the will. Will the Court permit the executor to sell the land for 
 an illegal or immoral purpose ? As to the personal property, the title is 
 in the executor — a principle originating in the Ecclesiastical law, which 
 vested everything in the Church for the good of the deceased's soul. In 
 this State the executor is regarded a trustee for the next of kin, the de- 
 vises failing or there being a residuum undevised. In this case, it was 
 plainly intended that the executor should not take. Frederick Fable is 
 not mentioned in the will, and there can be no conclusion against him. 
 It is the ordinary case of a defective devise : it falls into the residuum 
 and goes to the residuary legatee, or next of kin. 
 
 Harper, J. This is a case, both of novelty and importance, and I 
 have considered it carefully, with reference to the authorities within my 
 reach. On the part of the plaintiffs, it is contended that, under our law, 
 slaves being considered personal chattels, " to all intents, constructions, 
 and purposes, whatsoever," they are absolutely incapable of taking a leg- 
 acy, and that the bequest to them is absolutely void ; or that if a trust 
 is created in their favor, it is incapable of being executed, and the estate 
 must be distributed among the next of kin. On the part of the defend- 
 ants, it is urged — First, that under the civil law, slaves have capacity to 
 take for the benefit of the master, and that this should have much au- 
 thority with us, as the state of slavery which existed under that law, was 
 *390l ^"^^<^oO"s to that which exists among us; Secondly,* that if we 
 adopt the rule of the common law in relation to villeins, the same 
 consequence will follow ; they had capacity to take, though liable to be
 
 *u90] CHARLESTON, MAKCH, 1835. 299 
 
 divested of the property by the lord : or, Thirdly, that if they are con- 
 sidered incapable of taking;, this must be considered a beneficial bec|ucst 
 to the executor, for his own use, the testator having: intended him to take 
 the property absolutely and dispose of it at his pleasure, relying; only on 
 his friendship and good faith to dispose of it according to his wishes. 
 
 With respect to the civil law, however enlightened and admir:il>le a 
 system of jurisprudence it may be, it is not our law, nor have our Courts 
 any authority to declare it so. Our Legislature has adopted another 
 system of laws. Where our law is obscure or doubtful, it is frequently 
 of great utility in explaining or determining it, more especially as a great 
 portion of our law was derived from that source. But if the common 
 law be clear, we are not authorized to depart from it because the pro- 
 visions of another system may be better and more suited to our circum- 
 stances ; nor if it be defective, are Courts authorized to supply the 
 deficiency by drawing from a foreign source. Nor do I think the com- 
 mon law, in relation to villenage, can govern in relation to this matter. 
 The status, the entire civil and political condition of the villein, was, in 
 almost every particular, different from that of our slave. He had a per- 
 fect, civil and political capacity, and all the rights of a freeman, against 
 every person but his lord; and, with respect to the lord, the relation was 
 very different from that of the slave to his master. — Co. Lit. 123 b ; and 
 see the note G. to Thomas' edition, 1 vol. 421. 
 
 Though Coke seems to refer the origin of all servitude to captivity in 
 v^QX, yet we know that it often originated in voluntary contract; and I 
 apprehend that the essential distinction between villenage and slavery, is, 
 that the former was supposed, at least in theory of law, to have thus 
 originated. I have no doubt but that, very anciently among the Saxons, 
 perfect slavery existed, such as now exists among us, but this appears to 
 have been much modified by the feudal system. — Blackstone seems to fa- 
 vor this supposition — 2 Com. 92. "Under tlie Saxon government, 
 there were, as Sir. William Temple speaks, a sort of people in a condi- 
 tion of downright servitude, used and employed in the most servile works, 
 and belonging, both they, and their children and effects, to the lord of 
 the soil, like the rest of the cattle or stock upon it. *These seem r*oni 
 to have been those who held what was called the folk-land, from •- 
 which they were removable at the lord's pleasure. On the arrival of the 
 Normans here, it seems not improbable that they, who were strangers to 
 any other than a feudal state, might give some spai'ks of enfranchise- 
 ment to such wretched persons as fell to their share, by admitting them 
 to the oath of fealty, which conferred a right of protection, and raised 
 the tenant to a kind of estate, superior to downright slavery, but inferior 
 to every other condition." Reeves, in his History of the Common Law, 
 states that the tenure of villenage was established by the Normans — 2 
 vol. p. 39, c. 2. Mr, Hallam, in his view of the state of lOurope during 
 the middle ages, in allusion to the ancient state of slavery, says, that "in 
 England it was very common, even till after the conquest, to export 
 slaves to Ireland, till in the reign of Henry II. the Irish came to a non- 
 importation agreement, which put a stop to the practice." He has also 
 a curious note on the same subject. 
 
 If villenage was supposed to be a species of tenure, originating, as all 
 Other tenures did, in voluntary agreement, the villein consenting to serve
 
 300 SOUTH CAROLINA EQUITY REPORTS. [*391 
 
 in consideration of snpport and protection, will explain why he was re- 
 garded as a freeman with respect to every other person than his lord, and 
 even with respect to him had reserved some privileges. Very different 
 was the condition of the captive taken in war. Lord Coke says, Co. 
 Lit. 1, 16 b., " Fiunt etiam servi liberi homines capHvitate de jure 
 gentium, and not by the law of nature, as from the time of Noah's flood 
 forward, in which time all things were common to all, and free to all men 
 alike, and lived under the law natural, and by multiplication of people, 
 and making proper and private those things that were common, arose 
 battles. And then it was ordained by the constitution of nations, that 
 none should kill another ; but that he that was taken in battle, sliould 
 remain bond to his taker forever, and to do with him and all that should 
 come of him, his will and pleasure, as with his beast or any other 
 chattel, to give, or to sell, or to kill, &c., &c." We know that in point of 
 fact, African slaves were generally captives taken in war. After the 
 practice of enslaving prisoners of war was abandoned in Europe, the 
 captor was supposed to have a property in his prisoner, for the purpose 
 of enforcing a ransom. At a later period, prisoners of war were at the 
 disposal of the State. 
 
 I think that the true state of the slave must be ascertained by 
 ^^QQI *i'6ference to the disabilities of an alien enemy, in which light the 
 ■"-^ heathen were anciently regarded ; though certainly modern hu- 
 manity, the progress of opinion, and positive legislation, have greatly 
 modified their condition. In Calvin's case, t Co. p. 33, after speaking 
 of the condition of alien friends, it is said, "but if this alien become an 
 enemy, (as all alien friends may,) then he is utterly disabled to maintain 
 any action, or get anything within this realm. And this is to be under- 
 stood of a temporary alien, that being an enemy may be a friend, or being 
 a friend may be an enemy. But a perpetual enemy (though there be no 
 wars by fire and sword between them) cannot maintain any action, or get 
 anything within this realm. All infidels are in law, j^erpedn inimici, 
 perpetual enemies, for the law presumes not that they will be converted, 
 that being remota lootentia, (a remote possibility,) for between them, as 
 with the devils, whose subjects they be, and the Christian, there can be no 
 peace, for as the Apostle saith, 2 Cor. vi. 15, Quce auteni conventio 
 Chriati ad Belial, aid quce pars fideli cum injideli, and the law saith, 
 Judceo Christianuni nullum serviat mancijnum, nefas enim est quern 
 Christus redemit hlasphemum Christi in servitutis vinculis detinere. 
 Register, 282. Infideles sunt Christi et Ghristianorum inimici. And 
 herewith agreeth the book in 12 H. 8, fol. 4, where it is hoklen, the Pageu 
 cannot have or maintain any action at all. \_Qucere.'] 
 
 "And upon this ground, there is a diversity between a conquest of the 
 kingdom of a Christian king, and the conquest of the kingdom of an 
 infidel ; for if a king come to a Christian kingdom by conquest, seeing 
 that he hath vitce et necis potestatem, he may at his pleasure alter and 
 change the laws of that kingdom, but until he doth make an alteration of 
 those laws, the ancient laws of that kingdom remain. But if a Christian 
 king should conquer a kingdom of an infidel, and bring them under his 
 subjugation, there ipso facto the laws of the infidel are abrogated, for that 
 they be not only against Christianity, but against the law of God and 
 nature contained in the Decalogue, and in that case, until certain laws be
 
 *392] CHARLESTON, MARCH, 1835. 301 
 
 established amonf? them, the king by himself, and such judges as he shall 
 appoint, shall judge them and their causes according to natural e(iuity, 
 in such sort as kings in ancient times did with their kingdoms l)efore any 
 certain municipal laws were given, as before hath been said, that is to 
 say, they have no law but the king's pleasure. 
 
 *I am perfectly aware that this law has been denied, and in r^jjonq 
 Omychund r. Barker, 1 Atk. 42, in the opinion of the Lord Chief L 
 Baron, it is said that the enmity of heathens is to be understood of 
 si)iritual discord only. He refers to Salk. 46, where is quoted from Sir 
 Edward Littleton's readings on the statute 27 Ed. 3, "Turks and infidels 
 are not peiyetui inimici, nor is there a particular enmity between them 
 and us; but this is a common error founded on the groundless opinion of 
 Justice Brooke ; for thongh there be a difference between onr religion 
 and theirs, that does not oblige us to be enemies of their persons : they 
 are the creatures of God, and of the same kind that we are, and it would 
 be a sin in us to hurt their persons." 
 
 It is not necessary to vindicate the humanity of Lord Coke's doctrine, 
 nor its conformity to the spirit of Christianity ; but that such was the law, 
 not only of England, but of all Europe, is supported by the most noto- 
 rious facts, and the practice not only of the English government, but of 
 all the nations of Christendom. Upon this natural enmity of the heathen 
 was founded the claim of the Pope, as God's vicegerent upon earth, to 
 parcel out the countries inhabited by heathens among the governments 
 of Europe. This was derived no doubt from the commands given to the 
 Jews in the Old Testament, to drive out, extirpate, and enslave, if they 
 could not convert, the heathen nations inhabiting the countries which 
 they (the Jews) were to inhabit, and which commands were supposed to 
 be of general obligation, and to apply to Christians. On this principle, 
 the Spaniards took possession of the countries in America, and enslaved 
 their inhabitants. In Irving's Life of Columbus, vol. 2, book viii. chap. 
 5, after speaking of the first Indians sent as slaves by Columbus to Spain, 
 the author adds, "the customs of the times, however, must be pleaded in 
 his apology. The precedent had been given long before, by both Spaniards 
 and Portuguese, in their African discoveries, where the traffic in slaves 
 formed one of the greatest sources of profit. In fact the practice had 
 been sanctioned by the highest authority, by that of the Church itself, and 
 the most learned theologians had pronounced all barbarous and infidel 
 nations, who shut their ears to the truths of Christianity, as fair objects of 
 war and rapine, of captivity and slavery." Bryan Edwards, in his His- 
 tory of the *West Indies, quotes the bull of the Pope, by which r^og^ 
 the traffic in African slaves was first sanctioned. I refer also to '- 
 Hallara, to show that the traffic in slaves was common over the whole of 
 Europe. The practice of the English government was of the same sort. 
 They took possession as owners of all the countries discovered by thera, 
 inhabited by heathens; and we know that in all the colonies of North 
 America, many of the natives were enslaved. On this enmity of the 
 heathen and their destitution of all civil riglits, rested the king's right to 
 grant the lands inhabited by them. Though some of the proprietors did 
 make treaties with the nations, and give them a compensation to induce 
 them to relinquish the possession of their lands, yet this was merely a 
 matter of policy or humanity; the title of the proprietors was considered
 
 302 SOUTH CAROLINA EQUITY REPORTS. [*394 
 
 perfect without this. Spain, and I believe France, to the latest period 
 of their having colonies in America, granted to individuals any portion 
 of the land occupied by the natives, which it was thought expedient to 
 grant, without any treaty with or compensation to them. But it is un- 
 necessary to multiply facts which are perfectly known to any one having 
 the slightest acquaintance with history. At the very moment which the 
 judgment in Omychund i'. Barker was pronounced, and that in Ilarakis- 
 senseat v. Barker, 1 Atk. 51, where the plea of alien infidel was summarily 
 overruled by Lord Ilardwicke, the English government was notoriously 
 acting on tlie princii)les of the doctrine laid down by Lord Coke, through 
 the whole of its American colonies. The lawfulness of the African slave 
 trade, which was then and long afterwards protected and encouraged by 
 the government, was a consequence of the same doctrine. I apprehend 
 that the decisions in the cases to which I have referred, and likewise that 
 in Somerset's case, notwithstanding the ingenious argument of Mr. Har- 
 grave, were founded rather upon a consideration of what was due to 
 modern civilization and humanity, than upon the ancient law of England. 
 Sir Thomas Grantham's case, 3 Mod. 120, sustains these views, where an 
 Indian had been exhibited as a show for profit. Upon his being baptized, 
 a hoinine replegiando was brought; and in Wells u. Williams, 1 Lord 
 Raym. 282, it seems to be admitted that the law in relation to infidels 
 had been changed. 
 
 The Court said, "that the necessity of trade has mollified the too 
 ^oqc-j rigorous rules of the old law in their restraint and *discourage- 
 -^ ment of aliens. A Jew may sue at this day, but heretofore he 
 could not, for then they were looked upon as enemies. But now com- 
 merce has taught the world more humanity : and therefore an alien enemy 
 commorant here by license of the king, and under his protection, may 
 maintain debt upon a bond, though he did not come with safe-conduct." 
 I by no means contend that our law now is generally as laid down by 
 Coke ; it has been altered by opinion, by the decisions of the Courts, and 
 by legislation. I suppose that an alien enemy now permitted to reside 
 in the country, would be considered under a safe-coucluct and protected 
 in person and property. I suppose that it would be unlawful to enslave, 
 and might be murder to kill one of our native Indians; but in considering 
 the status of our slaves, it is necessary to refer to the origin of our rela- 
 tion to them. It is plain that all our practice and legislation respecting 
 them has had reference to their ancient dalus. 
 
 First, the Act of 1711 supposes the disabilities of slaves to be founded 
 on their infidelity, and it was thought necessary to provide that by being 
 baptized they should not be thereljy emancipated, but continue slaves as 
 before. The Act of 1740 declares that they shall be reputed and adjudged 
 in law, to be chattels personal in the hands of their owners and possessors, 
 and their executors, " administrators and assigns, to all intents, purposes, 
 and constructions whatsoever." 
 
 On the notion of their being public enemies, who could have no redress 
 for any personal injury, it provides a penalty for any person who shall 
 beat, bruise, wound or maim a slave, and likewise for the payment of 
 damages to his master. 
 
 It provides for punishing the murder of a slave, in terms which very
 
 *395] CHARLESTON, MARCH, 1835. 303 
 
 clearly indicate that without such provision it would be subject to no 
 puuishnieiit. 
 
 On the same notion of their being public enemies, not responsible to 
 the civil laws, it provides generally, that a slave committing an act which 
 would be felony in a free white person, shall sutler the same punishment. 
 
 It does not disable slaves from giving testimony against a white person, 
 but taking their incompetency for granted, it positively enables them to 
 give testimony against other slaves. These views may perhaps help to 
 explain some of the difficulties and anomalies *vvhich have been ^:^oQc 
 supposed to exist in the condition of this class of persons. They ^ '^ 
 may furnish an answer to the difficulty suggested in argument, that a 
 slave, for many purposes, may be the agent of his master, which could 
 not be if he were regarded as a chattel to all intents and purposes. He 
 is an intelligent human being, through whom the master's mind may be 
 conveyed. — Through him the master may propose or accept a contract, 
 being capable of acting as his master's agent. This explains the condi- 
 tion of our Indians in many respects. Laws are made for their protection 
 out of humanity ; they are treated with, and compensation is made to 
 them for such lands as they may surrender to the use of the whites ; but 
 in theory of law they are regarded as having no title to their lands, and 
 only occupying them at sufferance. It explains, too, why, though born 
 and living under our territory, they may make war upon the United States 
 without being guilty of treason. Being regarded as public enemies, they 
 owe no allegiance, and are therefore incapable of treason. 
 
 The difficulty suggested in case a slave finds a jewel or any other 
 article of value, that it might be seized by any person who should find it 
 in his possession as if it should be found hanging in the fleece of a sheep, 
 does not, I think, exist. He is an intelligent being, capable of taking 
 and intending possession. The law, however, declares him a chattel per- 
 sonal, which is supposed to attend the person of the owner. His posses- 
 sion is, therefore, referred to the master, and on that possession the master 
 might maintain trover against a stranger who should take an article so 
 found from his slave. So, if land were conveyed to a slave, the master, 
 by parity of reasoning, would be seized of that land — (an alien enemy is 
 not disabled to take land by purchase) — being declared by statute a 
 chattel personal in his master's possession, his seizure or possession must 
 be referred to the master. 
 
 It would seem to follow, however, from these principles, that in case 
 of land conveyed to a slave, the master would not take for himself, but 
 only until office found for the State. I know not how to arrive at any 
 other result. An alien cannot hold land ; nor could he grant, convey or 
 lease the land. — Co. Lit. 42 b. Com. Dig. Tit. Alien C. 4. So it is of 
 alien enemy's choses in action. "Xo alien enemy shall maintain any 
 action, real, personal or mixed." Co. Lit. 129, a Com. Dig. Tit. Alien. 
 C 5 " So if an alien enemy *take a bond, the king shall have r^on'r 
 it.'^ — Com. Dig. Tit. Alien, C. 2. " Choses in action belonging ^ 
 to alien enemy are forfeited to the crown, but there must be an in- 
 quisition to intitle ; and a peace before the inquisition, discharges the 
 causes of forfeiture." In the case of ininiicus perpetuus, however,, 
 there can be no peace. An alien enemy is not disabled to take lands, 
 though he holds only until office found. He is not disabled to take
 
 304 SOUTH CAROLINA EQUITY REPORTS. [*397 
 
 personal property in possession, but there is no provision by law for an 
 inquisition by which this shall be vested in the State. By the old law, 
 an alien enemy had no civil rights, and if any one had taken away pro- 
 perty found in his possession, there would have been no remedy. He 
 could maintain no action. But, as I have said, the possession of the 
 slave is the possession of the master. If one having good title to per- 
 sonal property, should transfer it into the possession of a slave, this 
 transfer would not be void : the title would be changed, but the title and 
 possession must be referred to the master. Whatever chattels the slave 
 acquires, he acquires for his master, and the master might maintain an 
 action for them in the hands of a stranger. But an executory contract 
 made with a slave cannot be enforced. No action could be maintained on 
 a bond or note given to a slave. Neither master nor slave could maintain 
 an action against the executor for the legacy given in this case, and it 
 should seem that it might be escheated to the State in the hands of the 
 executor. 
 
 It remains to inquire whether this can be regarded as a personal 
 bequest to the executor, giving the property beneficially to him, and only 
 depending on his friendship and good faith to deal with it as the testator 
 recommends. I have no doubt but that, as observed by the Chancellor 
 in his decree, there might be a legacy to support a favorite horse. This, 
 however, would not be a trust for the horse, who is incapable of being a 
 cestui que trust. It would, I apprehend, according to the terms of it, be 
 either an absolute bequest to the legatee, depending on his good faith to 
 carry into effect the testator's wishes, or it would be regarded as a con- 
 dition annexed to the bequest. Though such legacies must have often 
 occurred and are spoken of as familiar — " Die, and endow a college or a 
 cat," — yet in the examination I have been able to make, I have found no 
 ease of such an one. It would, I suppose, be similar to the class of 
 *QqQ-] legacies spoken of by Doraat, 2 vol. book 3, *Tit. 1, Sec. 8, vii. 
 -^ Treating of conditions and charges annexed to a legacy, he says, 
 " And in fine it is said of a legacy destined for some purchase or some 
 work, that it is left with this charge or upon this condition, that the said 
 purchase or work be made or done by him who is charged with it." He 
 observes, that "it depends on the terms of the bequest, whether the 
 charge does or does not amount to a condition;" and in the same section, 
 XXV. he adds, that in. such cases "Provision ought to be made for the 
 security of the person interested, according to the nature of the condition, 
 whether it be by the bare submission of the person on whom the cC)ndition 
 is imposed, or otherwise, according to the circumstances." Perhaps in 
 case of such a condition, our Courts might . require security for the per- 
 formance of it, as in Aston v. Aston, 2 Yern. 452, where a legacy was 
 given on a condition subsequent, the Court required security to refund, 
 in case of the condition broken. I suppose, if a testator should give a 
 slave bona fide and beneficially, to his legatee, he might give something 
 more to add to his comforts or to maintain him, if he were past labor. 
 Let us see if this was a legacy of this character. It is to be observed 
 that there is no direct bequest to the executor at all. The will first, after 
 ■legacies, gives the whole of the estate directly to the two children, who 
 are slaves. Then follows the direction that the real estate shall be sold, 
 and the proceeds invested in stock, the interest to be applied to the sup-
 
 *398] CHARLESTON, MARCH, 1835. 305 
 
 port of the children, at the discretion of his executor, wlioni he ni)iioiMts 
 their g-uardian. Is this a beqnest to the executor in any way ? ^Ve may 
 infer that the stock was to be purchased in the name of the guardian, hy 
 conjecturing- tliat the testator supposed that the slaves could not hold in 
 their own names. But this is not the effect of the terms of the will. He 
 first gives them the whole estate directly, and then directs the proceeds 
 of the real estate to be invested. The natural construction is, tliat it is 
 to be invested in the legatees' names; that it is ai)plied at the dist-reliun 
 of the executor — that he is ajipoiuted guardian, can make no dill'erence. 
 If the legatees were free white children, there would be no doubt at all 
 that it would be a direct bequest to them. Tlie testator knew that 
 guardians were appointed for free negroes, and probably su])poscd that 
 our laws regarded such persons as being in a state of perpetual minority. 
 We cannot conjecture that the testator supposed them to be incapable of 
 *taking directly. Only the proceeds of the real estate are directed r^oqq 
 to be invested. There is no disposition of anything else but the '- 
 direct bequest to them. The personal estate is said to be very trifling ; 
 but if there be anything at all, or if the testator supposed there was any- 
 thing, it rebuts the conjecture that he supposed them to be incapable of 
 taking directly. Then follows the direction to purchase the son, John. 
 Here, I suppose that the purchase was intended to be made, and the title 
 taken, in the name of the executor. But it is plain that he was to ])ur- 
 chase as executor, and that no personal benefit to him was intended. 
 Purchased with the funds of the estate, he would become part of the estate. 
 But the whole estate is given to the children. The mcaniiig of this is, that 
 John should be held by the executor as a slave, and be under his control ; 
 but that if he labored, he should enjoy the proceeds of his own labor. He 
 is to be held by the executor in trust for himself; he is to have the ?/.se of 
 himself. It is an attempt in effect to evade the law of the State forbid- 
 ding emancipation, a law, I am persuaded, however harsh it may ai)pear 
 to those who have no opportunity of forming a judgment on the sul)jcct, 
 is founded on principles of true humanity as well as just policy. With 
 respect to the rest of the estate, as I have observed, there is no trust at 
 all. With respect to John, there is a trust for his own benefit. In 
 Morrice v. the Bishop of Durham, 9 Yes. 399, 10 Ves. 522, where a 
 legacy was given to the defendant, in trust to be disposed of " to such 
 objects of benevolence and liberality,'' as he (the Bishop of Durham) 
 should most approve of, it was held that the Bishop could not take for 
 his own use, and that as the trust was too indelinite to be executed by 
 the Court, a trust resulted for the next of kin. The rule is laid down by 
 Lord Eldon, 10 Yes. 536. "I understand a doubt has been raised in 
 the discussion of some question, bearing analogy to this, in another 
 Court ; how far it is competent to a testator to give to his friend his 
 personal estate, to apply it to such purposes of bounty, not arising to 
 trust, as the testator himself would have been likely to a})ply it to. That 
 question, as far as thih Court has to do with it, depends altogether njion 
 this : if the testator meant to create a trust, and not to make an absolute 
 gift, but if the trust is ineffectually created, is not ex|)ressed at all, or fails, 
 the next of kin take. On the other hand, if the party is to take himself, 
 it must be on this ground, according to the authorities ; *that the r^.^n 
 testator did not in earnest create a trust, but intended a gift to L
 
 306 SOUTH CAROLINA EQUITY REPORTS. [*400 
 
 that person for his own use and benefit ; for if he was intended to have it 
 entirely in his own power and discretion, whether to make the application 
 or not, it is absolutely given." And again, p. 537, "If he gives upon 
 trusts hereafter to be declared, it might perhaps have been as well to have 
 held, that if he did not declare any trust, the person to whom the pro- 
 perty was given should take it. If he says he gives in trust, and stops 
 there, meaning to make a codicil or an addition to his will, or where he 
 gives upon trusts which fail, or are ineffectually expressed, in all those 
 cases, the Court has said, if upon the face of the will there is declaration 
 plain, that the person to whom the property is given, is to take it in 
 trust ; and though the trust is not declared or is ineifectually declared, or 
 become incapable of taking effect, the party taking shall be a trustee ; if 
 not for those who were to take under the will, for those who take under 
 the disposition of the law." In Gibbs v. Rurasey, 2 Yes & B. 294, 
 after giving part of her estate to trustees, upon certain specific trusts, the 
 testatrix gives the residue to the same trustees, (by name,) " to be dis- 
 posed of unto such person or persons, and in such sum or sums of money 
 as they in their discretion may think proper and expedient." In that 
 case, from the uncontrolled power of disposition given to the trustees, it 
 was inferred that the intention w^as to give to the trustees beneficially for 
 themselves. But in all the cases on the subject, the question is of the 
 intention to give to the trustee for himself. But, in the case before us, 
 there can be no doubt of the intention, that no benefit was intended to 
 the executor. There is declaration plain on the face of the will, that the 
 slaves were the only objects intended to be benefitted. 
 
 From the views I have taken, however, the plaintiff's are not entitled. 
 The bequest to the slaves is not void, on the principles before examined. 
 A chose in action given to alien enemy is not void, though while alien 
 enemy he can maintain no action upon it. A trust created in favor of an 
 alien enemy, is not incapable of being executed. " If an alien enemy 
 *am 1 Pi^^chase a copyhold or land in *the name of another, in trust for 
 -' himself and his heirs, the king shall have it." "But if an alien 
 purchase in the name of a trustee, the king cannot be entitled by inquisi- 
 tion, for the estate at law is in the trustee, not in the alien. But he must 
 sue in Chancery to have the trust executed." Com. Dig. Tit. Alien. C 
 3. I do not say what the eff"ect would be if the executor should think 
 proper, of his own accord, to pay over the legacy to the slaves, or their 
 master. But remaining in his hands, it is subject to the claim of the 
 State. 
 
 The Chancellor's decree must be therefore affirmed, and the bill dis- 
 missed, but without costs. 
 
 Johnson and O'JS'eall, Js., concurred.
 
 *401] COLUMBIA, DECEMBER, 1^35. 307 
 
 [This case should have preceded the last, but was accidentally mis- 
 placed.] 
 
 Stallings and Wife u. Jacob Fore.man, Administrator of Isaac 
 
 Foreman. 
 
 An administrator selling the personal estate of his intestate umler the order of the 
 Ortli lary, is allowed to become a purchaser, when I e sells fairly and pnys tlie full 
 value. Therefore a purchase of a slave by an administrator at his own sale, under 
 an order of the Ordinary at a fair price and without fraud, was su.-tained aj^ainst 
 the bill of the distributees seeking to set it aside [*405] 
 
 The cases in tliis State, as to purchases by executors, administrators and other 
 trustees, at their own sales, reviewed. [*40.5] 
 
 On a review of the rights and liabilities of executors and administrators at common 
 law and under our Acts of Assembly, it seems they may acquire their testator's 
 or intestate's property, provided the sale is fairly made under the authority of the 
 will or the order of the Ordinary, and that the price is 'he true value of the 
 property. [*408] 
 
 The reason of the rule which avoids the purchases at his'own sale of a trustee to 
 sell, does not apply to executors and administrators ; and those entitled by law 
 to administration, would olten decline it if prevented from buying [*]()'.»] 
 
 Barnwell — February, 1835. 
 
 De Saussure, Chancellor. The bill is filed against the administrator, 
 for an account and settlement of the estate of the intestate, Isaac Fore- 
 man. The shigle point made and argued in this case, is whether the 
 purchase of a slave, named August, made by the defendant, Jacob Fore- 
 man, administrator of Isaac Foreman, at a sale of pro})erty of the estate 
 of his intestate, authorized by the Ordinary at the instance of the ad- 
 ministrator, shall be set aside at the instance of the plaintiffs, who are enti- 
 tled to a distributive share of the estate. It appears that the slave, 
 August, was, at the time of the purchase by the defendant at his sale as 
 administrator, a boy somewhere about twelve years of age, and capalde of 
 being a plough-boy. He has since grown up, and is a very valuable ser- 
 vant, and his hire for his annual services, put by the testimony at a high 
 rate, is far indeed beyond the amount of the annual interest of the price 
 at which he was purchased by the defendant ; *not less, indeed, r:(cj^Ac> 
 than three or four times the amount of the interest. The defend- '- 
 ant contends that the sale was authorized by the Ordinary, and therefore 
 regular and good ; that it was fairly conducted, and that he bid a fair 
 price, viz.: $350, which was not only the just value, but a very high price; 
 that he was at liberty to purchase at the sale, and that he is entitled to 
 hold the said slave under his purchase, and to account accordingly for the 
 price and interest thereon. It is admitted, on the part of the plaintiffs, 
 that the sale was authorized by the Ordinary; but it is contended that 
 the sale was unnecessary, and that the purchase of the slave, August, by 
 the defendant, the administrator, Jacob Foreman, at his own sale, was 
 void, and vested no property in the defendant, who is required to deliver 
 up the slave, and to account for his hire. Tiiat the sale was authorized 
 by the Ordinary, who has the power, is sufficient for this Court, unless 
 fraud be shown in procuring the order. There is nothing in the evidence 
 to lead the mind to the belief that the sale was unfairly conducted, or that 
 any advantage was taken by the defendant to obtain the said slave, at a 
 price below his full value; and I think that the weight of evidence esta- 
 blishes that the sum of $350, which was bid by the defendant, was not an
 
 308 SOUTH CAROLINA EQUITY REPORTS. [*402 
 
 unfair or short price for a boy of about twelve years of age. Tlie question, 
 then, is really reduced to the simple point, whether a purchase, made 
 under such circumstances, should be sustained by the Court, for the 
 administrator who purchased ; or set aside, at the instance of the plain- 
 tiffs, who are entitled to distributive shares of the estate. It is unneces- 
 sary to go into the history of the changes which the doctrine has under- 
 gone of the authority of executors and administrators, to sell the property 
 of the estate in their hands, at their discretion, or to take it at their ap- 
 praisement. These powers have been controlled and regulated by statutes 
 founded on experience of the danger of trusting such powers in the hands 
 of men, who might be tempted to abuse them for their own advantage, to 
 the prejudice of persons who are generally widows or minors, and incapable 
 of taking care of their interests. The authority to take the estate at an ap- 
 praisement has been abolished, and the power to sell has been taken from 
 executors and administrators, and transferred to the Ordinary ; a confiden- 
 tial officer of the government, who may grant or refuse the authority to sell, 
 according to his judgment of the propriety of the application of the execu- 
 jj. -, tor or administrator. Notwithstanding* these wise provisions of 
 -^ the statute, it was found that abuses existed ; and that some execu- 
 tors and administrators and trustees, availed themselves of the advantages 
 of their position of sellers, with the power to manage and control the 
 sales, to become purchasers at their own sales, at a price below the real 
 value of the property put up for sale. To check these abuses, the Courts 
 have been obliged to interfere, and in many cases to set aside purchases 
 thus made, in order to protect the interests of women and children. This 
 has given rise to a good deal of controversy, as to what cases the Court 
 would interfere in. It has been held that the only safe rule would be to 
 deny altogether the right of executors, administrators and trustees, to 
 become purchasers under any circumstances, and to declare them all void. 
 This, however, has been considered too strong a course, and even injurious 
 to the estates, as it might prevent these functionaries from interposing 
 their bids to prevent low sales to other persons, and to diminish the circle 
 of competition. The decided cases fluctuated for some time. There was 
 great uncertainty and division of opinion among the judges, as may be 
 seen in the cases of Drayton v. Drayton, 1 Eq. Rep. 557, and M'Guire v. 
 M'Gowen, 4 Eq. Rep. 486. Many other decisions followed, which were 
 made to turn mainly on the ground of fairness in obtaining authority to 
 sell, correctness in conducting the sales, and fulness of prices bid by the 
 executors and administrators. The abuses were so flagrant and frequent, 
 that there was a strong disposition to declare such purchases void. But 
 the opinion prevailed that they should be held to be only voidable ; de- 
 pending on the circumstances of fairness and propriety and price, in each 
 particular case. This was a pretty good check, but not entirely effectual, 
 because in many cases it was difficult to detect and bring to light the arts 
 and contrivances by which sales were made and purchases at low prices 
 or doubtful prices were obtained. The later decisions appear to me to 
 have settled down on the proper ground. That purchases made by execu- 
 tors, administrators and trustees, at their own sales, were not absolutely 
 void, but voidable — for impositions in obtaining orders for sales without 
 necessity, by misrepresentation of the situation of the estate, or fraud 
 and contrivance in conducting the sale, or management in obtaining the
 
 *403] COLUMBIA, DECEMBER, 1835. 300 
 
 property at low and inadeqnntc prices. And fiiiully, one other protec- 
 tion was added, that the persons interested, who thoiif-'lit thcinsclvcs 
 atrgrieved liy the purchases l)y executors, &c., *should he at liberty r* jn , 
 to avoid the sale by dissenting from the same, unless they Jiave L ■*"•* 
 done some positive act by which they have given up or abandoned their 
 right. 
 
 This renders the guard against abuses complete ; for persons in fidu- 
 ciary situations will not be apt to make purchases at low rates, or even 
 moderate prices, when they know that, if ultimately the purchase turned 
 out advantageously for them, they would assuredly be avoided ; but if 
 disadvantageonsly, they would remain bound. In the case of Edmonds 
 and others l'. Crenshaw & M'Morris, 1 M'C. Ch. Rep 252, 2G0, it was 
 laid down broadly, that the executor's purchase at his own sale was void, 
 and the slave purchased was still the property of the estate. — See also 2 
 John. Ch. C. 252. In Wiggin's case, 1 Hill's Ch. Rep. 353-4, decided 
 1833, Chancellor Johnston stated the rule to be, "that according to the 
 decided cases, a trustee to sell cannot purchase whether he is a party in- 
 terested or not. If he sells, thts sale will be set aside, or he will be held 
 to the purchase as of course, at the option of the parties interested ; and 
 as the rule forbidding such purchases is one of policy to ])revent fraud, 
 when there is no possibility of proving it, the inquiry is never made 
 whether the sale is or is not advantageous." This was putting the decision 
 on the broadest ground. Judge Harper, who delivered the unanimous 
 opinion of the Court of Appeals, concurred fully with the Chancellor in 
 his expressions. It is true, that in the Court of law the doctrine has not 
 been carried so far, or has been somewhat modified ; yet substantially it 
 has been supported by the decisions. In the case of Trimmier v. Trail, 
 2 Bail. Rep. 480, decided in 1831, the Court decided that an adminis- 
 trator, having an interest in the estate, may purchase to the extent of his 
 interest ; and a purchase, by an administrator not entitled to a share of 
 the estate, is not necessarily void, but may be confirmed or set aside at 
 the election of the parties interested in the estate. These doctrines ap- 
 ply to all persons acting in fiduciary stations, executors and administra- 
 tors, as well as those more technically called trustees. In this case, 
 therefore, although the purchase made by the administrator, who had no 
 interest in the estate, does not appear to have been made fraudulently or 
 at a low price, I feel bound to declare it null and void, because the plain- 
 tiffs entitled as distributees, have by their bill signified their option that 
 the sale should be set aside. 
 
 It is therefore ordered and decreed that the purchase be set aside and 
 *avoided ; and that the defendant should deliver up the slave in r:(c < ac 
 question, named August, for distribution, and that in accounting •- 
 before the Commissioner, as he is hereby ordered to do, for the rest of 
 the estate, he account for the hire and labor of the said slave. 
 
 Patterson, for the appellan.t. 
 
 Elmore, contra. 
 
 O'Neall, J. The naked question in this case is, whether an adminis- 
 trator, selling the personal estate of his intestate, under the order of the 
 Ordinary, can be allowed to become the purchaser, when he sells fairly 
 Vol. I.— 43
 
 310 SOUTH CAROLINA EQUITY REPORTS. [*J:05 
 
 and pays the fall value ? I think he can ; and in this respect executors 
 and administrators constitute an exception to the rule that " a trustee to 
 sell cannot purchase." 
 
 On tracing this question through the various cases decided, it will be 
 found that no decision against this position has been made. In the 
 earliest case which can be found,- that of Drayton v. Drayton, 1 Eq. Rep. 
 557, 567, the Chancellors, Matthews and Rutledge, decided the very 
 point, in exact conformity to what I conceive to be both law and equity. 
 Speaking of a purchase made by Gr. Drayton, one of the testator's ex- 
 ecutors, at the sale of his estate, they say : — " As to G. Drayton's pur- 
 chase at the sale of the testator's estate, we consider it in the same light 
 as that of any other individual ; there is no law which prohibits an ex- 
 ecutor purchasing (ivith out fraud) any property of his testator, at 
 open aiid jniblic sale. ^^ This was in 1797, and until M'Gruire u Mc- 
 Gowen, 4 Eq. Rep. 486, (in 1814) the country remained quietly under 
 the rule settled by the case of Drayton v. Drayton. In that case the 
 precise question now before the Court did not arise ; the defendant was 
 the husband of the administratrix, and guardian ad litem of the minors 
 in a proceeding in jiartition in the Common Pleas, in which the land of 
 the intestate was ordered to be sold, and of which, at the sale made in 
 pursuance of the said order, he became the purchaser. It was held by a 
 majority of the Court, that his purchase was valid. In 1817, in the case 
 of Perry v. Dixon, reported in a note, 4 Eq. Rep. 504, the question was 
 made, whether an executor's purchase, at his own sale, was good ? The 
 Court, without adverting to Drayton v. Drayton, which was a direct de- 
 cision of the point arising in the case, and thus constituted a rule (as I 
 *inf 1 ^^^ conceive) *for their government, decided the case as one of 
 -^ novel impression. Chancellor Waties, holding that an executor, 
 as a trustee to sell, could not be allowed to purchase at his own sale, 
 Chancellor De Saussure said "he was not prepared to go the whole 
 length of the principle" laid down by Chancellor Waties : "that would 
 (he said) exclude executors and administrators from purchasing on their 
 own account, at sales of the estates under their charge, in any case what- 
 ever, and thus p)lace them entirely on the footing of mere trustees." — 
 " Perhaps a wise policy would place them on that footing, ivhere they 
 had no interest ; but where they have an interest in the property, it 
 would seem to be too severe a rule to prohibit executors and administra- 
 tors from purchasing at such sales, at least to the extent of their interest." 
 Chancellor James concurred in the principle maintained by Chancellor 
 Waties — Chancellors Gaillard and Thomas dissented, and were for re- 
 versing Chancellor Waties' decree. From this time to 1824, there were 
 a variety of cases involving, in a greater or less degree, the principle 
 maintained by Chancellor Waties, in Perry v. Dixon : but in none of 
 them did it receive the sanction of the Court. In the case of Bullock v. 
 Williams and wife,(a) the purchase made by Mrs. Williams, who was the 
 administratrix of her former husband, at her own sale, was attempted to 
 be set aside, and was supported by the Circuit Chancellor, on the ground 
 of its fairness. That decree was affirmed by the Court of Appeals, or 
 acquiesced in by counsel thoroughly acquainted with the current of de- 
 
 *Not reported.
 
 *406] COLUMBIA, DECEMBER, 1835. 311 
 
 cisions. So far as I am aware, the question, divested of circumstances of 
 actual or letjal fraud, has not been i>rescntedto the Court of Appeals since 
 1824. In Edmunds v. Crenshaw & M'Morris, 1 M'C. Ch. Rep. 252, it 
 was adjudged by Chancellor Thompson, that the purchase of the execu- 
 tor, M'Morris, at the sale made by himself and his co-executor, was void, 
 and his decree was affirmed by the Court of Appeals. But in that case 
 the defendant, M'Morris, never complied with the terms of the sale, and 
 was, from insolvency, incapable of paying the price at which he made the 
 pui'chase, at the time the decree was pronounced. So that that decision 
 can be maintained upon other principles : and / knoio that the recovery 
 was not rested by the plaintiffs upon the abstract principle of equity, 
 that a trustee to sell is not allowed to buy at his own sale. In Trimmier 
 V. Trail, 2 Bail. 484, I indicated ray opinion on this question : and as I 
 am *about giving utterance to that o])inion more formally and r^.r^^f 
 authoritatively, it is not necessary to take any more specific notice L 
 of that case. In ex parte Wiggins, 1 Hill's Ch. Rep. 353, my brother 
 Harper, with the concurrence of the whole Court, laid down the rule, 
 that the purchase of a trustee to sell was voidable on the application, 
 and at the instance, of any of his cestui que trusts. On looking into that 
 case, it will be seen it was a sale and purchase by an assignee : and does 
 not therefore conclude the exception now insisted on, in favor of execu- 
 tors and administrators. After this review of the adjudications in this 
 State, it will be seen that the case of Drayton v. Drayton has never 
 been reversed ; and that, on the score of authority, the exception for 
 which I contend is made out. 
 
 But independent of this, it is enough for my purpose, that in establish- 
 ing a principle of law, I am not guilty of the unpardonable sin (as some 
 seem to think it) of reversing some ill-advised and hasty opinion of our 
 own, or of our i^espected predecessors. 
 
 In Perry v. Dixon, Chancellor De Saussure, with his usual good judg- 
 ment, thought that executors and administrators ought not to be put on 
 the footing o^ mere trustees: and I hope to be able to demonstrate, that 
 so far as the question before us is concerned, they are not, and they can- 
 not be so regarded. 
 
 At common law, an executor or administrator is the legal owner of the 
 goods and chattels of the testator or intestate ; and before 1824, he could 
 legally dispose of them to another, without even the order of the Ordinary. 
 The goods and chattels of the testator, after the payment of deljts and 
 legacies, were formerly, both at law and in equity, the proi)erty of the 
 executor. So too, an administrator, by paying the debts and the shares 
 of the distributees, without even a sale, would, in England, have made the 
 goods of the deceased his own. In England, and in this State, until 
 1745, P. L. 202, the executor or administrator could only be called on 
 to account for the appraised value of the testator or intestate's goods. 
 This was the only standard by which creditors, legatees or distributees, 
 could charge him. To the goods thejnsolvcs, if aliened or wasted, they 
 had no right: and until 1745, executors or administrators might lawfully 
 take the goods as their own, at the ajipraised value, In 1745, the Legis- 
 lature recited, that "Whereas a custom hath too much prevailed among 
 executors and administrators, of taking estates or some parts thereof, at
 
 312 SOUTH CAROLINA EQUITY REPORTS. [*407 
 
 *insn ^^^^ appraisement, M-hen such appraisement *hath been under the 
 -^ true value," and for remedy thereof, enacted, "that no executor 
 or administrator shall hereafter be i)ermitted to take any estate, or any 
 part thereof, at the ap2'>roisemeni, and that no appraisement, to be made 
 as aforesaid, shall be binding or conclusive, either upon the creditors, 
 legatees, next of kin, or other person interested in such estates, or upon 
 the executors or administrators ; but all, and every such executors and 
 administrators, shall be accountable and chargeable for the true value 
 of such estates, any practice to the contrary notwithstanding." 
 
 This review of the rights and liabilities of executors and administrators 
 at common law, and under the Act of 1745, clearly shows, that by paying 
 the true value, they might acquire, as against their cestui que trii.sts, the 
 goods of their testator or intestate For the Act of 1745 restricts their 
 general ownership to an acquisition for the true value. This certainly 
 shows, that an executor or administrator was something more than- a mere 
 trustee : for if he paid the full value of the goods to the creditors, neither 
 they nor the next of kin could question his rights. Let it be remem- 
 bered, that an executor or administrator never was a mere trustee to 
 sell: his trust was and is, to collect the personal assets of the deceased, 
 to pay debts and legacies, and the residue to distribute according to the 
 will or the law. In 1745, the Ordinary was not authorized to order sales 
 of the personal estate to be made: in 1789, he was clothed with that 
 power, for division, payment of debts, or to prevent the loss of perish- 
 able articles: and in 1824, the executor (when not authorized by the will 
 to sell) and the administrator were prohibited from selling without the 
 permission of the Ordinary. These several acts make, as I conceive, the 
 prerequisites to the validity of a purchase, by an executor or adminis- 
 trator, that the sale should have been fairly made by the authority of the 
 will, or by the order of the Ordinary, in a case in which he had jurisdic- 
 tion, and that the price is the true value of the goods. If this be not the 
 result of the Acts of 1824, 1789, and 1745, some one of them must be 
 inoperative. This will not be contended for. 
 
 An executor or administrator, however, cannot be regarded as a mere 
 agent to effect a sale. He generally is greatly interested in the estate of 
 which he has the management. Is he to be excluded from acquiring a 
 favorite slave, when he is willing to give more than every other bidder ? 
 Can it be that his purchase at one dollar more than A.'s bid, shall be set 
 *4091 ^^^^^ 5 ^^^^ y^^> ^f ^^^ ^^^ suffered the ^property to go oft" at A.'s 
 -^ bid, the sale would have been good ? The reason of the rule — 
 the prevention of secret frauds in the purchases of trustees to sell — does 
 not apply to sales made by executors or administrators. They are made 
 in public, in the neighborhood where the property is known, the sale is 
 conducted by an indifferent person, an auctioneer employed for the occa- 
 sion ; if fraud is committed, it is obliged to be known to the spectators or 
 auctioneer, and can therefore be proved ; and hence there is no necessity 
 for an artificial rule to prevent its perpetration. 
 
 The application of the principle, that a trustee to sell cannot be 
 allowed to purchase at his own sale, to executors or administrators, 
 would often compel executors to decline to qualify as such : and would 
 prevent the widow or children of an intestate from* claiming the right of 
 administration, guarantied to them by law. For if they assume any of
 
 *409] COLUMBIA, DECEMBER, 1835. 313 
 
 these characters, (i. e. executors or administrators,) under the rule stutcil, 
 they cannot buy any of the personal property of tlie deceased, wliicli may 
 be sokl under the will, or the order of the Ordinary. The riiihl to buy 
 at such sales is often of essential importance to persons named executors, 
 the widow and the children ; and hence, if as executors or administrators 
 they could not buy, they would be compelled to forego the executorship, 
 or administration. This would be making a mere rule of equity, intended 
 to subserve justice, work a positive legal wrong, and carry out and enforce 
 the grossest injustice. 
 
 For these reasons, I have coniQ to the conclusion, that an executor or 
 administrator is not to he regarded as a mere trustee to sell : that his 
 own lyarchase at his own sale, when fairly made in pursuance of the 
 will, or under the order of the Ordinary in a case of which he had 
 jurisdiction, for the true value of the goods and chattels so sold, is 
 good ; and must be supported both in law and equity. 
 
 In this case, the administrator has shown that he sold by the order of 
 the Ordinary, in a case of which he had jurisdiction ; that the sale was 
 fairly made, and that he purchased at the true value. 
 
 It is therefore ordered and decreed, that so much of Chancellor De 
 Saussure's decree, as sets aside the administrator's purchase of the 
 slave August, be reversed. 
 
 Johnson and Harper, Js., concurred. 
 
 * l^p^ An Act of the Legislature was passed on the 18th r-jitiirt 
 December, 1835, entitled, "An Act to reform and amend the Judi- L 
 ciary System of this State," which repealed the Act of 1824, estal)lishing 
 a Court of Appeals ; and provides, that from the Judges of the said Court 
 of Appeals, two shall be designated by ballot of both branches of the 
 Legislature, to act as Chancellors, and that the remaining Judge shall 
 perform the duties of a Judge of the Courts of Law; and that the Law 
 Judges and Chancellors, shall meet and sit at Columbia on the fourth 
 Monday in November, and the third Monday in July, — and at Charles- 
 ton on the first Monday in January, and the fourth Monday in April, in 
 each year, "for the purpose of holding the Court of Appeals, in hearing 
 and determining all motions which may be made for new trials, and iu 
 arrest of judgment, and such points of Law and E(|uity as may be sub- 
 mitted to them, with the same powers now exercised by the Court of 
 Appeals : Provided, that not less than a majority of the Law Judges, 
 and a majority of the Chancellors, shall hold said Court ; and provided 
 also, that no Chancellor or Law Judge, l)y or l)efore whom a case has- 
 been heard or tried, shall exercise appellate jurisdiction thereupon in 
 said Court." 
 
 In pursuance of this Act, and in the same session, the Hon.. David 
 Johnson, and the Hon. Wm. Harper, were designated by ballot as 
 Chancellors ; and consequently, the Hon. J. B. O'Neall, the remaining 
 Judge, became a Judge of the Courts of Law.
 
 CASES IN CHANCERY 
 
 ARGUED AND DETERMINED IN THE 
 
 COURT OF APPEALS OF SOUTH CAPtOLI^^A. 
 
 Clpilcsfoit— ^prll, 1836.* 
 
 CHANCELLORS AND LAW JUDGES PRESENT. 
 
 Hon. henry W. DE SAIJSSURE, 
 Hon. DAVID JOHNSON, 
 Hon. WM. HARPER, 
 Hon. J. JOHNSTON, 
 Hon. J. B. O'NEALL, 
 
 Hon. J. S. RICHARDSON, 
 Hon. JOSIAH J. EVANS, 
 Hon. J. B. EARLE, 
 Hon. a. p. BUTLER. 
 
 A. Jackson, and Others, v. John Inabnit, and Andrew Inabnit. 
 
 Where one signed a deed conveying several slaves in trust to his son with limitations 
 over, and kept the deed — neither the trustees nor the son being present, — and the 
 son had possession of some of tlie negioes at the time, and afterwards got the 
 others ; but there was no proof that he ever recognized the deed : Held, that there 
 was not such evidence of delivery of the deed as to subject the property to its 
 limitations. [*415] 
 
 Where parties churning under the limitations of a deed obscure and doubtful in its 
 terms, had submitted it to counsel for advice, and afterwards publicly aban- 
 doned their claim, and the property was sold at the instance of creditors, and 
 went into the hands of purchasers for valuable consideration, they shall not be 
 permitted afterwards to setup their claims: that would sanction a practical fraud 
 on the purchasers. Their acquiescence is an abandonment of their rights. [*416] 
 
 Heard before Chancellor De Saussure, at Walterborongh, January, 
 1835. 
 
 The plaintiffs filed their bill against the defendants, claioaing certain 
 negroes under a deed wherein defendants are appointed trustees, executed 
 by Baltus Inabnit, deceased ; in wliich, as they allege, he conveys the ne- 
 groes in question, to his son Christian, with limitations over in favor of the 
 plaintiffs, in the event of his death without issue. They allege that 
 
 *No Appeals from the Courts of Chancery were heard in the January Term, for 
 the want of a quorum in such cases ; one of the Chancellors being engaged in holding 
 the Circuit Court in Charleston, and the late Act requiring a majority both of the 
 law Judges and Chancellors to constitute a quorum, and at the same time disquali- 
 fying a Judge or Chancellor from the exercise of appellate jurisdiction in cases tried 
 before him.
 
 *411] CHARLESTON, APRIL, 1836. 315 
 
 Christian died withont issue, and tliat they are entitled ; and pray that 
 such of the *shxves as came into defendants' possession, may he 
 delivered up, and that they account for the remainder, which tliey •- 
 charg-e have been lost by their neg;lig"ence and misinanagemont. Several 
 questions were made and argued on the hearing of the case on the Circuit, 
 and decided by the Chancellor. But it is only necessary to state the facts 
 connected with those decided by the Court of Api)eals. 
 
 The first question related to the delivery of the deed. It purported to 
 have been signed, sealed and delivered in the presence of three witnesses 
 — was proved and recorded. George Clayton, one of the subseril)ing 
 witnesses, testified that he witnessed the signing by Baltns Inabnit, ancl 
 proved the deed before a magistrate. He did not in fact sec the deed 
 delivered; for neither John nor Andrew Inabnit was present, and Baltus 
 took it away with him. It was objected by the plaintiifs, that it was 
 inadmissible to examine the witness as to the delivery, as he had pre- 
 viously sworn on the probate, before recording that he saw the deed " signed, 
 sealed and delivered." On which the Chancellor, in his report, says, " I 
 overruled the objection, because it was manifest tliat the witness, an igno- 
 rant man, when called on to prove the execution, meant no more than 
 that he saw Baltus Inabnit sign the deed. He says he did not see it 
 delivered. On principle, witnesses can be thus examined. On the trial 
 of the due execution of wills, although the subscribing witnesses have 
 testified that the will was duly executed, they are subjected, subsequently, 
 to a full examination as to the particulars of the execution, to ascertain 
 whether the facts which took place at the time of the execution, corre- 
 sponded with the course prescribed by the statute. Besides, the proof is 
 clear that John Inabnit was not present, and it was not alleged that An- 
 drew Inabnit was. This is a distinct, independent fact, clearly admissible 
 to proof; and being proved, as it was, even by the subscribing witness to 
 the deed, is conclusive that no delivery in fact took place, for none could 
 take place to them. jSTow, in this suit, which is to make the trustees 
 liable, this is all-important. Again, Baltus Inabnit took away the deed ; 
 he kept the control over it, to be used or not, as he pleased. Thi^re is, 
 indeed, no proof that the deed was ever delivered by Baltus Inabnit to 
 the persons he had named as trustees in the deed ; for when it was desired 
 to have it proved, the witness, Clayton, testified that he was sent for to 
 prove it, by Baltus Inabnit ; and there is no proof who ordered the deed 
 to be recorded. Nor *is there any evidence that these persons r*_iiq 
 ever accepted, or did any act showing an acceptance of the trust. L 
 This bill then, which seeks to make them liable as trustees, for neglect of 
 duty amounting to a breach of trust, cannot be sustained against them." 
 
 The deed itself, as the Chancellor states, "is profoundly obscure; more 
 obscure than the subtlety of learning, designing to conceal a meaning, 
 could have contrived it. It was a gift of tlie property to Christian Inab- 
 nit, with incomprehensible provisions and limitations, which are void for 
 uncertainty, and he held the property clear of them." " It appears. further," 
 continues the Chancellor, " by the evidence, that Baltus Inabnit had put 
 his son. Christian, in possession of this property I)efore the execution of 
 the deed, and that he held the same as his own. So that the fatlier had 
 no right to exercise any control over these slaves, and to make a new 
 gift with limitations. And it seems certain, that Christian Inabnit did
 
 316 SOUTH CAROLINA EQUITY REPORTS. [*413 
 
 not claim, or hold under the deed, (if he knew of its existence,) for he 
 treated the slaves as his own absolute property, and mortgaged them to 
 secure the payment of his own debts. 
 
 " There is still another ground of great importance. After the death 
 of Christian Inabnit, the brothers and sisters set up a claim, under the 
 deed, and took counsel thereon. On a very hasty perusal of the deed, 
 and without a full knowledge of the facts, the gentleman consulted (who 
 is remarkable for his sound judgment) was of opinion that it was a good 
 and valid deed, and would operate on the property, and give the plaintiffs 
 a good title. Subsequently, on fuller information and on a more deliberate 
 consideration, he changed his opinion. Other counsel of great respecta- 
 bility was also consulted, who informed the plaintiffs that the deed was 
 so obscure, that no intelligible meaning could be made out of it ; and that 
 in his opinion the plaintiffs could not sustain their claim under the deed. 
 It was then necessary to come to a conclusion, for the creditors of Christian 
 Inabnit desired to know of the plaintiffs whether they meant to make a 
 claim under the deed, that they might re.:ist the same, and bring it to a 
 conclusion. After a deliberate reconsultation with their counsel, and 
 under his opinion, the plaintiffs gave up their claim. They abandoned 
 their intention to pursue it ; and the creditors were informed of this reso- 
 lution : whereupon they took no steps to get the judgment of a Court. 
 In consequence of this abandonment, the creditors of Christian Inabnit 
 *i1i1 ^^^^^ upon their liens, *and the slaves in question were sold pub- 
 -' licly, and in the presence of almost all the plaintiffs, who made no 
 objection, and some of them even became bidders at the sale. The slaves 
 were purchased by dift'erent persons, at high prices, and have been held 
 by them, and in some instances transferred to other purchasers for valua- 
 able consideration. The proceeds of these sales were applied to pay the 
 debts of Christian Inabnit. Under these circumstances, it appears to me 
 that these transactions can never be disturbed, and that the plaintiffs can- 
 not have relief, and their bill should be dismissed." 
 
 The plaintiffs appealed. 
 
 Smith, Attorney- General, for the appellants. 
 Ilemminger, contra. 
 
 Mr. Justice Butler delivered the opinion of the Court. 
 
 The Chancellor who pronounced the circuit decree, being in full pos- 
 session of the whole case, has decided all the questions fairly involved in 
 it. His decision leads to the conclusion that the plaintiffs' bill should be 
 dismissed, and we concur in this conclusion. Whilst it was proper for 
 him to decide on all the grounds taken below, it is not necessary for this 
 Court to take more than will sustain his decree. 
 
 The grounds on which we rest our decision, are : 
 
 1. There was. not suthcient testimony to satisfy the Chancellor, that the 
 deed which purports to have been executed by Baltus Inabnit was ever 
 duly delivered by him for the purposes expressed in it ; or that Christian 
 Inabnit took the negroes under the deed, and held them subject to its 
 limitations and control. 
 
 2. The parties who were interested in claiming under the deed, after 
 Christian's death, having deliberately and upon a full knowledge of their
 
 *-il4] CHARLESTON, APRIL, 1836. 317 
 
 rights, agreed not to assert their claims, they shall not now be pcruiitted 
 to do so after the negroes have been sold to bona fide i)urchasers, for 
 valuable consideration, in satisfaction of the debts contracted by Christian 
 Inabnit on the faith of them. 
 
 As it regards the first ground, it is perhaps sufficient to say, that the 
 Chancellor who heard the testimony was more capable of judging of its 
 force and sufiicieucy than we can be, who must look at it as it is repre- 
 sented, and not as it was developed during the trial. It is certain, from 
 the testimony of the only subscribing *\vitness that was examined, r:|c^iK 
 that the deed was not delivered in fact, at the time it purports to L 
 have been executed. Baltus Inabit kept it in his possession — in his ex- 
 clusive possession — during his lifetime. He may have intended to reserve 
 to himself a control over the deed, and the property conveyed by it. But 
 it might be inferred that a delivery had been made, sufficient to give the 
 deed its legal operation, if it had been proved that Christian took under 
 it, or acknowedged its existence in the lifetime of his father. But such a 
 conclusion does not seem to be authorized. At least, the Judge below 
 did not think so. He says : — "It appears further by the evidence, that 
 Baltus Inabnit had put his son. Christian, in possession of this property 
 before the execution of the deed, and that he held the same as his own. So 
 that the father had no right to exercise any control over these slaves, and 
 to make a new gift with limitations. And it seems clear that Christian 
 did not claim or hold under the deed, (if he knew of its existence,) for he 
 treated the slaves as his own absolute property, and mortgaged them to 
 secure the payment of his own debts." From the explanation made in 
 the argument, it is probable that the son had ])art of the slaves only in 
 his possession, before the deed was executed. The others that went into 
 his possession afterwards, were regarded by him, as the first were, as his 
 own absolute property ; and as there is no evidence that he knew of, or 
 assented to the deed Jjefore his father's death, it is fair to conclude that 
 he held the negroes by a title independent of the deed. But, as before 
 observed, it was a question of evidence ; and the judgment passed upon 
 it, by the Circuit Chancellor, is entirely satisfactory to this Court, he 
 having a better opportunity to decide rightly than we have. 
 
 We feel fortified in the second ground, by the consideration that the 
 slaves were sold to satisfy the debt of Christian Inabnit, contracted, no 
 doubt on the faith of their being his absolute property. This of itself 
 would not be enough to deprive the parties of their rights under the deed, 
 if they were clearly expressed and definitely secured by the provisions and 
 legal requisites. But the deed is exceedingly obscure, and of doubtful 
 import. So much so, that it would be difficult for any Court to pro- 
 nounce a satisfactory judgment on its legal construction. The plaintiffs 
 believing, or supposing that they had a legal claim under the deed, sub- 
 mitted it to intelligent counsel for direction and advice. This was at the 
 time the negroes were about being sold. Their counsel iook *time, p^ , , „ 
 b} agreement with the representatives of creditors, to investigate ^ 
 the question presented. The plaintiffs were informed that their claim 
 could not be sustained. This was not the hasty conclusion of inexperi- 
 enced advisers. The plaintiffs, on such advice, agreed to abandon their 
 claim ; and by their consent or acquiescence, the projjcrty was sold, and 
 bought by purchasers for valuable consideration. Would it be right to
 
 318 SOUTH CAROLINA EQUITY REPORTS. [*416 
 
 set aside these sales, made under such circumstances ? To do so, would 
 be to sanction, if not an intentional, a practical fraud upon the pur- 
 chasers. By the conduct and consent of the plaintiffs the purchasers 
 acquired their title. The law will not disturb their title now, by offend- 
 ing the obvious justice which the whole case suggests. 
 
 If the deed under which the parties claim has no legal existence for 
 the want of delivery ; or, if it has lost its legal operation by the conduct 
 of those interested in it, then the plaintiffs must fail in their application 
 for redress. 
 
 Whether any testimony was properly rejected, as well as some other 
 questions in the case, may only be adverted to, to say that we do not 
 deem it necessary to pass any judgment on them. 
 
 It is ordered and decreed that plaintiffs' motion be refused, and that 
 their bill be dismissed, with costs. 
 
 Chancellors Harper and Johnston, and Justices O'Neall, Richard- 
 son, Evans, and Earle, concurred. 
 
 Georgk Edwards and Others v. Martha S. Barksdale, Administratrix. 
 
 Under the statute of distributions, first cousins of the whole and half blood are next 
 of kin in equal degree, and equally entitled to the estate of the intestate. [*417] 
 
 Heard before Chancellor Harper, at Coosawhatchie, February, 1836. 
 
 It was referred to the Commissioner to inquire and report who are the 
 next of kin of the intestate, Thomas H. Barksdale. He reports on the 
 evidence, that the intestate left a widow, the defendant, and the several 
 plaintiffs his only next of kin ; that Thomas B. Bona is a first cousin of 
 the whole blood; and that George Edwards, Mary Holbrook, Mrs. Coe, 
 and Mrs. Kirk, are first cousins of the half blood ; and submits to the 
 decision of the Court who are the next of kin. Thomas B. Bona excepts 
 to the report, on the ground that the Commissioner should have reported 
 *41*7l *^'™ ^^^^ o"^y ^^^^ ^^ '^i"' entitled to the estate under the statute 
 -J of distributions. 
 
 Harper, Chancellor. The statute provided, that " if the intestate shall 
 have no lineal descendant, father, mother, brother or sister, of the whole 
 blood, or their children ; or brother or sister of the half blood, or lineal 
 ancestor, then the widow shall take two-thirds of the estate, and the re- 
 mainder shall descend to the next of kin." If no widow, the portion 
 allotted to her is to go as the remainder. The questions are, whether 
 the half blood are included at all under the description of next of kin ; or, 
 if admitted, whether they are put on the same footing with kindred of the 
 whole blood, or postponed one degree. 
 
 The terms of the Act, in their plain and literal import, certainly do 
 include the half blood. Being descended from a common ancestor, they 
 are no less of kin than the whole blood ; and according to the method of 
 computation pointed out by the Act itself, these plaintiffs all stand in the 
 same degree to the intestate. By the English statute of distributions,
 
 *417] 
 
 CHARLESTON, APRIL, 1836. 319 
 
 (22 and 23 Car. 2, c. 10,) which was of force in this State previously to 
 the passino; of our own Act of 1791, if there are no children, the estate is 
 given to the next of kin. Under this statute, it has been always held, 
 that the half blood are included, and they arc put on the same footing 
 with the whole blood, in the granting of administration and the distribu^ 
 tion of estates. 
 
 But it is argued, that the Act of 1701, is an Act of descents, not of 
 distributions ; the disposition of real estate being first provided for, and 
 then it is provided that the distribution of personal estate shall conform 
 to it. In construing a statute of descents, we must have reference, not 
 to the English statute of distributions, which received its construction 
 from the civil or canon law, but to the common law of descents. That 
 law is still of force, unless in so far as it has been altered by the statute ; 
 and in giving construction to the words "next of kin," we must take 
 them to mean such next of kin, as, on general principles of law, are quali- 
 fied to take For example, if the next of kin were an alien, he is within 
 the letter of the law, yet no one supposes that he can inherit land ; or, if 
 a statute similar to ours were passed in England, that an attainted per- 
 son could inherit. 
 
 Let us examine the Act by the rules prescribed by Lord Coke, in 
 Heydon's case, 3 Rep. 7. 
 
 *1. What was the common law, before the making of the Act ? [-^ . , ^, 
 
 2. What was the mischief and defect for which the common law ^ 
 did not provide ? And, 
 
 3. What remedy the Legislature hath resolved and appointed, to cure 
 the disease of the commonwealth. 
 
 We know what the canons of the common law were, in relation to 
 descents ; and we perfectly well know the evil which was intended to be 
 remedied. The complaint was, that the estates of deceased persons were 
 distributed, not as it was supposed nature and affection would have 
 prompted the owner to dispose of them, but by certain artificial rules 
 arising out of the feudal system, which had ceased to exist. The eldest 
 son was preferred to the younger, though they were equally near in blood, 
 and, it may be presumed, in aifection to the father. So sons were pre- 
 ferred to daughters ; and in the more remote relations, males in every 
 instance to females. The Act corrects all this, by putting all children 
 on the same footing, and sisters on the same footing with brothers. Why 
 should it not be contended that, under the clause in question, male next 
 of kin should be preferred to female ? The express object of the Act is, 
 " to abolish the right of primogeniture, and to give an equal distribution 
 of the real estates of intestates." A general purpose, which runs through 
 the whole Act, and may be detected in every one of its provisions, is to 
 distribute the estates of deceased persons among their kindred, according 
 to propinquity of blood ; supposing, what is in general true, that affection 
 is according to nearness of blood. Keeping in view this general purpose 
 of the Act, we may more easily arrive at its true construction. 
 
 On the same reasoning which was used in this case, it might be contended 
 that the next of kin, to take under the Act, must be of the blood of the 
 first purchaser. But when we recollect the origin of that rule, the strictly 
 descendible nature of feuds, and that upon failure of descendants, they 
 reverted to the lord, and call to mind the general purpose of the Act
 
 320 SOUTH CAROLINA EQUITY KEPOKTS. [*418 
 
 aboYO-inontioiUHl, wo shall hardly oouolude that a man's land may escheat 
 to the Slate, thongh he may have near kindred to inherit it. 
 
 So it might be snpposed that when the intestate was the lirst purehaser 
 of the land, the heirs on the part of the father shonld inherit in preference 
 to those on the part of the mother. If this wore admitted, then the most 
 remote relation on the part of the tathor wonhl iidu-rit, in preference to a 
 very near one on the jiart of the mother. But this would be opposed to 
 ^.,f.-| the i)urpose of the *Aet, which puts males and females on the 
 ' -^ same footing. Xo distinction is known in nature, between the 
 alVection for relations on the part of the father, and those on the part of 
 the mother. Other such instances might be ]nit. 
 
 So in the case of the half blood. Mr. llargrave, in his note to Coke, 
 Ijit. 14, a. n. 3, refers to Wright's Ten. 1S4, where the exclusion of the 
 half blood is supposed to be a consequence of the rule for restricting the 
 succession to the descendants of the lirst feudatory. Mr. Cruise,, in his 
 Treatise on Real Estates, (3 vol. 3G5,) supposes it to have been derived 
 from the Xorman customs, by which the half blood by the mother's side, 
 was excluded when the inheritance descended from the father, and vice 
 versa: which he supjioses to have boon in time extended to the entire 
 exclusion of the half blood, lie refers to the Urand Coustumier, c. '25. 
 There can be little doubt but that it must have originated in some such 
 feudal reason, for it is not foumled in nature. Can we suppose it con- 
 formable to the spirit of our Act, that the most remote conceivable kins- 
 man of the whole blood shall inherit in preference to the children of a 
 brother of the half blood ? or, if there be none of the whole blood, that 
 the land shall escheat ? For if the next of kin of the half blood are not 
 init on the same footing with those of the whole blood, the consequence 
 must I'o tliat I hey are excluded altogether. 
 
 With respect to the alien, the purposes of the Act of ITOl have no 
 imaginable connection with the policy of the law which disables such an 
 one to hold land within the State; and construing according to its sjnrit, 
 I may well conclude that the Act did not intend to embrace him, though 
 in strictness comprehended within its letter. But certainly I can tind 
 nothing in the Act to auihori/.e me to exclude the half blood, who are 
 expressly within the letter. 
 
 Nor can the half blood, as contended for, be postponed one degree. 
 According to the reasoning I have used, if the half blood Inul not been 
 si)ocilioally mentioned at all, they would have boon includod in the Act, 
 and ]»lacod on the same footing with the whole blood. In certain enu- 
 merated instances, however, they are postponed one degree. Am I from 
 this to iidor that they are to be in like manner postponed in every other 
 instance, where no such thing is said. The contrary is rather the legiti- 
 mate inference. I may suppose that it would have been more conformable 
 to nature, that the half blood should have been postponed one degree 
 *4201 ^^^'■^^"p.'lio"^ fii'il conjecture that only through some casual *inat- 
 tention of the Legislature, it was not thus expressed. But, cer- 
 tainly, I am not at liberty to depart from the plain terms of the Act, 
 upon such a conjecture. 
 
 I am happy to tind myself supported in this conclusion by the decided 
 cases on the subject — that of Karwon c. Lowndes, 2 Kq. Kep. 2\0 ; and 
 by the authority of Chancellor De Saussure, iu Guerard c. Guerard,
 
 *4:2()] CHARLESTON, AriiiL, 1830. 821 
 
 reported in a note to Wren r. Carncs, 4 Eq. Rep. 405. Nor do I recrard 
 it as at all inconsistent with the determination in Wren v. Carnes, ami in 
 Lawson v. Perdrianx, 1 ISrC. 45(5, that by the Act of 17*t7, amending; 
 that of 1701, and providinc^, that where there is a father or mother, and 
 brother or sister, they shall take eqnally — brother or sister of the whole 
 blood only is meant. Upon the i)articular jirovisions of both Acts con- 
 strned toe-ether, I shonld certainly arrive at the same conclnsion. 
 
 It is a(ljnde:ed and decreed, that the said Thomas 13. Bona, CJeortre 
 Edwards, INlary Ilolbrook, INIrs Coc, and Mrs. Kirk, are the next of kin 
 of the intestate, Thomas II. Barksdale, in eqnal degree, and eqnally 
 entitled to his estate. 
 
 Colcock Q.nd JPCarfhy, for appellant. 
 
 Petigru and I)e TreviUc, contra. 
 
 Chancellor De Saussure delivered the opinion of the Conrt. 
 
 In ordinary cases it might be snflicient to say, that the Court is 
 unanimously of opinion the decree delivered in this case by Chancellor 
 Harper is correct, and must be allirmed. J>ut the very confident tone 
 in which it was insisted by the counsel for the i)laintin', Thomas ]>. Bona, 
 that the decree was erroneous in jtrinciple, and that the authorities on 
 which it professed to rely were wholly uufoiahlc, or inapplical)ie, require 
 that something more should be said. The Conrt has reexamined the 
 statutes which required construction, as well as the cases which have 
 been decided under them ; and upon full consideration, is entirely satis- 
 fied that the construction heretofore given to the statutes respecting the 
 half blood is the correct construction, and that the cases decided, were 
 rightly decided, and are in harmony with each other. 
 
 The Court expresses itself in this decided manner, that it may be 
 understood by the profession and the community, that the construction 
 and doctrine established by this decree is permanently settled, and the 
 door to further litigation on the subject closed. 
 
 It is therefore unanimously adjudged and decreed, that the decree of 
 the Circuit Court be affirmed.
 
 CASES IN CHANCERY 
 
 ARGUED AND DETERMINED IN THE 
 
 COURT OF APPEALS OF SOUTH CAROLINA. 
 
 6olumbhi — |u1it, 1836. 
 
 CHANCELLORS AND LAW JUDGES PRESENT. 
 
 Hon. HEXRY W. DE SAUSSURE, 
 Hon. DAVID JOHNSOX, 
 Hon. WM. HARPER, 
 Hon. J. JOHNSTON, 
 Hon. J. B. O'NEALL, 
 
 Hon. RICHARD GANTT, 
 Hon. J. S. RICHARDSON, 
 Hon. JOSIAH J. LEWIS, 
 Hon. B. J. EARLE, 
 Hon. a. p. BUTLER. 
 
 Ez. Massey vs. Andrew M'Ilwain, Nancy M'Cardell and James 
 
 King. 
 
 Purchaser at sheriff's sale not allowed the protection of an execution under which 
 
 the land was not sold. [*425] 
 One who has paid the purchase-money, taken possession and made improvements 
 
 under a parol contract for the purchase of land, entitled to specific performance. 
 
 [*426] f f 
 
 One purchasing land, to which another has an equitable title, with notice of the 
 equity, takes subject to the equity, and is bound to convey in like manner as the 
 person from whom he purchased. [*42G] 
 
 Where land was sold under execution as the property of one who had the legal title, 
 but under a parol contract which had been performed was bound to convey to the 
 plaintiff, the purchaser is invested with all the rights of the judgment creditors at 
 whose instance the land was sold, and want of notice to them of the plaintiff's 
 equity may protect him ; but it seems that the possession of the land by the plain- 
 tiff would be sufficient notice to creditors. [*427] 
 
 The rule in equity is, that an agreement in writing to convey will bind the estate 
 and prevail against subsequent liens ; so, too, a parol contract to convey which 
 has been performed and set up by the Court, has equal validity with a written 
 covenant ; and the party entitled to specific performance may hold the land against 
 subsequent judgment creditors of the vendor. [*428] 
 
 Heard before Chancellor Johnston, Lancaster, July, 1835. 
 
 In 1826, the plaintiff, and the defendant King, contracted with Nathan 
 and Abel Funderburk, to purchase of them a tract of land, containing 
 two hundred and ninety-six acres, for six hundred dollars. With the 
 consent of the plaintiff, they executed a conveyance to King alone, who 
 gave them his note for the money, with the plaintiff as security, but the 
 conveyance has never been recorded. It was, however, at the time
 
 *421] COLUMBIA, JULY, 1836. 323 
 
 expressly agreed between plaintiff and King, that plaintiff was to have 
 one half the land, and he (King) shonld convey the sarae to plaintiff, 
 when he paid him his portion of the price ; but this agreement was merely 
 verbal, and was never reduced to writing. Immediately after tlie pur- 
 chase, both King and *the plaintiff settled on the land, and went rn^.a^ 
 on with building and improving ; and not long after procured a '- "'"' 
 surveyor to run a dividing line between them; and from that time to the 
 present, they have both lived on, improved and cultivated their respective 
 portions as designated by this line. In 1830, or thereabouts, the ]iiniiitiir, 
 having previously made other payments, paid the balance in full to King, 
 his proportion of the price of the land, but never obtained a conveyance 
 from him. Previous to this time. King had become much involved in 
 debt, and judgments were obtained against him for a considerable amount, 
 at the instance of sundry i)ersons, and entered up at dift'erent times from 
 1828 to 1830, some of them for debts contracted before, and some of them 
 after plaintiff had paid King his portion of the purchase-money, and 
 amongst others, one at the suit of the Funderburks, against both himself 
 and the plaintiff, for $52, being a balance due of their notes given as the 
 price of the land. The entire tract of land, including that in the posses- 
 sion of plaintiff as well as King, in October, 1830, was however levied 
 on and sold, in February, 1831, as the property of King, under an execu- 
 tion at the suit of one H. Hoey. At this sale the defendants, Andrew 
 M'llwain and Nancy M'Cardell, were the purchasers. M'llwain, who 
 was the active agent in the purchase, had explicit notice of the possession 
 and nature and extent of the plaintiff's claim at the time he purchased. 
 Defendants, M'llwain and M'Cardell, have commenced an action at law 
 against the plaintiff, to try the title and recover possession of the land ; 
 and the object of this bill is to set aside the sale to them, and to restrain 
 their proceedings in the action at law. 
 
 The Chancellor. In the view which I take of this case, it is unneces- 
 sary to examine most of the questions made. Whether M'llwain and 
 Mrs. M'Cardell had or had not notice of the transactions between King 
 and Massey, before they purchased from the sheriff, is immaterial, so long 
 as they can stand in the shoes of the creditors of King, to whom, with 
 the exception of the Funderburks, it is not pretended notice was extended 
 by the arrangement of King and Massey themselves. The title was taken 
 to King, which procured him credit on the faith of the land. Massey 
 cannot therefore complain that King's creditors should satisfy them- 
 selves out of property of which he consented that King shouUl become 
 the ostensible owner ; and if the creditors had the *sale of the r* ^go 
 land in their power, a sale by them to a person infected with L 
 notice, was as good as if made to one who had no notice at all. To say 
 otherwise, would put it in the power of one, first, to obtain credit, and 
 then, by giving general notice, to defeat that creditor of his remedy, by 
 cutting off all purchasers under the creditors' execution. The well- 
 known principle, that one infected with notice may safely purchase from 
 and protect himself under another destitute of notice, is of easy applica- 
 tion to this case. This is sufficient to decide the case, as between the 
 plaintiff and the defendants, M'llwain and M'Cardell. As to King, the 
 plaintiff is entitled to a decree against him for reimbursement ; although 
 at present his insolvency may seem to render that nugatory.
 
 324 SOUTH CAROLINA EQUITY REPORTS. [*423 
 
 Tt is decreed that the bill against the defendants, M'llwain and Mc- 
 Cardell, be dismissed ; and that, as between the plaintiff and the defend- 
 ant. King, an account be taken to indemnify the phiintiff" for such pay- 
 ments as the plaintiff has made said King, on the score of the land men- 
 tioned in the pleadings — the plaintiff to be liable to M'llwain and Mc- 
 Cardell for their costs, and King to be liable over to the plaintiff for 
 theirs, and all other costs of the case. 
 
 The plaintiff appealed, and now moved to reverse the Chancellor's de- 
 cree, on the ground that the case made entitled him to relief. 
 
 Clinton and Peareson, for the appellant, contended that it was an es- 
 tablished principle of equity, that one purchasing a trust estate, or an 
 estate subject to equitable rights, with notice, took subject to all the lia- 
 bilities of the vendor. That it was not denied that as between the plain- 
 tiff and King, the performance of the parol contract for the land, by the 
 payment of the purchase-money, and taking possession and making im- 
 provements, made such a case as entitled the plaintiff to a specific per- 
 formance. The proof was clear that M'llwain, the agent in the purchase, 
 had explicit notice of the plaintiff's equity at the time he made the pur- 
 chase, and even before. And if it be insisted that he is invested with the 
 rights of the creditors' executions, it is contended that they too had legal 
 notice. The possession of the plaintiff from 1826, his improvements and 
 general acts of ownership, the creditors living in the neighborhood, con- 
 stituted such evidence of title in him as should have put the creditors on 
 the inquiry ; and amounted to notice of his claim. Besides, these debts 
 *i9i1 ^^''^ "*^^ contracted on the faith *of this land. King had no ac- 
 -l tual possession ; he had the deed, it is true, but it was not re- 
 corded ; and if creditors came to a knowledge of the purchase, they would 
 at the same time know the manner of the purchase, and the plaintiff's 
 claim. The defendants cannot be protected under Funderburk's execu- 
 tion, for this creditor was privy to the agreement between King and the 
 plaintiff, and knew of its performance. At the time the agreement was 
 performed, there were no liens on the land, and King had the right to 
 convey. The plaintiff's equity is therefore paramount to that of credi- 
 tors. Cited Daniels v. Davidson, 16 Ves. 250; 1 John. Ch. Rep. 267; 
 2 Fonb. 151; 5 John. Ch. 29. 
 
 W. F. De SausHiire, contra, argued that the defendants, M'llwain and 
 M'Cardell, as purchasers for a valuable consideration, were entitled to 
 the protection of the Court. They had not only the rights of purchasers, 
 but were invested with all the rights of the execution creditors, among 
 whom Funderburk had his execution for the balance due on the original 
 purchase. 
 
 By the Court. — Was Funderburk's execution levied ? 
 
 It was not — but the balance due on it was paid from the sales. The 
 debts were contracted subsequent to the purchase of the land, and on the 
 faith of it. The equity of the creditors is at least equal to that of the 
 plaintiff; and where equities ai*e equal, the law must prevail. 
 
 As to notice — He insisted that notice to the purchasers was not suffi- 
 cient : there must be notice to the creditors, whose rights they are clothed 
 with ; and there was no proof of notice to them. Possession is only 
 evidence of title to personal property, not to real. A purchaser with
 
 *424] COLUMBIA, JULY, 1836. 325 
 
 notice of an equity, ma}' protect liimself by want of notice to the porsoii 
 from wliom he purchased. And here, these defendants will be protected 
 by want of notice to the creditors. Cited Amb. 764 ; 1 John. Ch. Rep 
 274; Ca. Temp. Talb. 187; Brandlyn n Ord, 1 Atk. 571 ; Sweet v. 
 Southcote, 2 Bro. Ch. 66; Biimpus i;. Platner, 1 John. CIi. 219. 
 
 Chancellor Johnson delivered the opinion of the Court. 
 
 It seems that at the time of the sale of the land by the sheriff, and the 
 purchase by defendants, there was still a small balance of the principal, 
 and the costs, remaining due on the judgment at the suit of Funderljurk 
 against the defendant, King and * the plaintifF, for the price of the r^,:)r 
 land ; and before I enter upon what are supposed to be questions •- 
 of more importance, I will dispose of the argument of the counsel op- 
 posed to the motion, by which it is insisted, that the debt itself was an 
 equitable lien on the lands, and overreached the claims of the plaintiif as 
 well as all others. However this may be in point of principle, (and I 
 will not stop to examine it,) the land was not sold under that judgment, 
 nor are the plaintiffs in that cause parties to this suit, or claiming the 
 benefit of their lien (if in law they have any,) nor can the defendants 
 shelter themselves under it, for there is no privity between them. 
 
 The legal estate in the land was confessedly in the defendant, King, at 
 the time the judgments referred to were obtained against him, and the 
 sale made by the sheriff ; and the question is, whether the equity of the 
 plaintiff, arising out of the agreement between him and King, that King 
 should convey one half of the land to him on his paying half the price 
 agreed to be paid for the whole, his subsequent possession of the land, 
 and the actual payment of the money, should prevail against the legal 
 rights of the defendants, M'llwaiu and M'Cardell, who purchased with 
 notice of the nature and extent of the plaintiff's claim. 
 
 If King was under no legal obligation to convey to the plaintiff, or if 
 the legal title acquired by defendants under their purchase, or the equity 
 of the creditors of King at whose suit the land was sold, is entitled to be 
 preferred, then of course the plaintiff is not entitled to the relief which 
 he prays ; but if, on the other hand, the rights of plaintiff arc to be pre- 
 ferred, he ought not to be disturbed in the possession. In the consider- 
 ation of the case, it will therefore be necessary to ascertain — 
 
 1. What are the rights of the plaintiff, as l)etween King and himself. 
 
 2. What are his rights as between the defendants, M'llwaiu and Mc- 
 Cardell, purchasers with notice — and 
 
 3. What are his rights with reference to those who were creditors of 
 King at the time he fulfilled his agreement with him, by paying his por- 
 tion of the price of the land. 
 
 1. Notwithstanding the statute of frauds, the Courts of Chancery have, 
 for a long period of years, and through along series of judicial decisions, 
 enforced the specific performance of parol contracts for the sale of lands, 
 where they have been partly performed ; and *the ground upon. r:j:jop 
 which they have proceeded, is not that they are not within the '- 
 original provisions of the statute, but because the suffering of the party 
 who had accejjted the performance, to shelter himself under the provi- 
 sions of the statute, would enable him to practice a fraud at least as 
 odious as that which the statute was intended to prevent, and thus render 
 Vol. L— 44
 
 326 SOUTH CAROLINA EQUITY REPORTS. [*4:26 
 
 tlie statute an instrument of fraud. It is, however, a doctrine which the 
 Courts have carried out with reluctance, and over which they have 
 watched with a jealous circumspection. Hence the rigid proof which is 
 required of the terms of the contract, and the fact of paitial perform- 
 ance, for which I refer to Thomson v. Scott, et al. — 1 M'C. Ch. Kep. 33. 
 
 The proof here is perhaps as perfect as could be expected to be de- 
 rived from matters depending on memory, not only of the terms of the 
 agreement between King and the plaintiff, but of the partial execution 
 of it by King, in delivering the possession of the laud, and running out 
 and marking a dividing line between them, and of the entire performance 
 by the plaintiff of his part of the agreement, by paying the price stipu- 
 lated ; and it will suffice to remark of these circumstances, that they con- 
 stitute the proof required by the most rigid rule. — 1 Mad. Ch. 380. — 
 The plaintiff is therefore entitled, as between himself and King, to a 
 specific performance. This has not been questioned. 
 
 2. Regarding the rights of the other defendants, as derived from King, 
 the rule in equity is, that one coming into the possession of trust property 
 with notice of the trust, shall be considered as the trustee, and bound to 
 the execution of the trust with regard to that particular property. As in 
 Taylor v. Stibbert. 2 Ves. jun. 437, where tenant for life granted leases 
 for lives under a power, and bound himself upon the dropping in of a 
 life, to grant new leases with the same provisions for the renewal on the 
 death of any person named in any future lease, and afterwards joined in 
 a sale, though the power was exceeded ; and it was held that a purchaser 
 having notice would be bound to a specific performance, by granting a 
 new lease, with the same provision, if a life dropped in, in the lifetime of 
 his lessor. Now, although the legal estate in the land was in King, yet, 
 by accepting performance of the agreement on the part of the plaintiff, 
 he held subject to his equity, and, as trustee, was bound to convey ac- 
 cording to the terras of the contract ; and the defendants, having had 
 notice at the time they purchased, are bound by the same trusts. 
 ^ ,c,K-| *3. Defendants, M'llwain and M'Cardell, are not only invested 
 -■ under their purchase with all the rights of King, but they are also 
 clothed with the rights of his creditor, at whose instance the land was 
 sold. The creditor has the right to have his debt satisfied out of the 
 property of his debtor, and if it is sold under execution for that purpose, 
 the purchaser is invested, not only with the rights of the debtor, but those 
 of the creditor also — which is in some degree peculiar. If, for example, 
 the debtor convey lands after judgment signed against him, or even before, 
 when he conspires with the purchaser to defraud his creditors, a pur- 
 chaser at sheriff's sale, at the instance of the creditor, is entitled to pre- 
 vail against the voluntary alienee of the debtor, notwithstanding the 
 legal estate of the debtor had been before divested by his voluntary alien- 
 ation ; and in that case, the rights of the purchaser are derived from the 
 creditor, and hence the necessity of the third inquiry proposed. 
 
 Some of the debts for which judgments were subsequently obtained 
 against King, were contracted before the plaintiff had performed his part 
 of the agreement to purchase the land, and when the legal title was con- 
 fessedly in King, and assuming that he obtained credit on the faith that 
 it belonged to him, it is insisted, that in Equity the claims of the creditors 
 ought to be preferred ; at any rate that the Court will not aid the plaintiff
 
 *427] COLUMBIA, JULY, 1836. 327 
 
 in doing wrong to the creditors, but leave them to tlieir rights at law. 
 But it will be recollected that at the time plaintiff i)aid his money, the 
 creditors had no lien on the land, and that the payment of the money 
 alone, if it gave him no legal right, made him as meritorious a creditor 
 of King, as if he had lent him money or sold him goods, and placed him 
 on at least an equal footing with the other creditors. He was also in 
 possession of the land ; and that, according to some of the English cases, 
 was not only notice to creditors, but sufficient to rejiel the claims of a 
 subsequent purchaser. In Daniels v. Davidson, 16 Yes. 254, the Lord 
 Chancellor Eldon, observes, that there was considerable authority for the 
 opinion which he held, that where there was a tenant in possession under 
 a lease or agreement, a person purchasing the estate was bound to inquire 
 on what terms he was in possession, and was bound by the terras of the 
 lease or agreement ; and refers to the case of Douglas v. Whitrong, in 
 which Lord Kenyon held, that possession was sufficient notice ; and to 
 the case of Taylor v. Stibbert, 2 Ves. jun. *440, in which it was 1-^490 
 expressly ruled ; and if possession alone be notice to a purchaser, L 
 it is necessarily so as to creditors. But the claims of the plaintiff rest, I 
 think, on higher grounds and more satisfiictory authority. 
 
 The rule in Equity is, that an agreement in writing to convey land in 
 consideration of an adequate price paid, will in Equity bind the estate, 
 and prevail against any subsequent judgment creditor ; and is so laid 
 down by Lord Chancellor Cowper, in Finch v. Winchelsea, 1 P. W. 282. 
 The reason for the rule is well expressed in 1 Eq. Ca. Abr. 320, Tit. 
 Mortgage, where it is said, " that if a man mortgages by a defective con- 
 veyance, and there are subsequent creditors whose debts did not origin- 
 ally affect the land. Equity will supply such defective conveyance against 
 such subsequent incumbrancers who acquired a legal title afterwards ; for 
 since the subsequent creditors did not take the lands for their security, 
 nor have in view an intention to affect them ; when afterwards the lands 
 are affected, and they come in under the very person that is in conscience 
 obliged to make the defective security good, they stand in his place and 
 shall be postponed to such defective conveyance." The same question 
 was so ruled in Taylor v. Wheeler, 2 Vern 564, where a defective mort- 
 gage was set up in opposition to the claims of the assignees of the mort- 
 gagor who had become bankrupt. In all these cases, it is true, the 
 contracts were in writing, and in that alone they differ from the present 
 case ; but I apprehend the principle equally applies. If the contract is 
 binding on the parties, the legal effect is the same whether it is in writing 
 or by parol. A parol agreement to convey lands set up by the Court, 
 has equal validity with a deed containing a covenant to convey. 
 
 The judgment of the Circuit Court is therefore reversed ; and it is 
 ordered and decreed that the conveyance of the sheriif to the defendants, 
 M'llwain and M'Cardell, for the lands described in the pleadings, be 
 delivered up to be cancelled; that the said defendants, ]\I'I]wain and 
 M'Cardell, be perpetually enjoined and restrained from proceeding in 
 their action at law against the plaintiff to recover the said laud ; and 
 that they pay the costs of this suit. 
 
 Justices Gantt, Riciiardson, O'Neall, Evans and Butler, concurred.
 
 328 SOUTH CAROLINA EQUITY REPORTS. [*429 
 
 *429] * Jesse Gordon, Administrator, v. Sarah W. Stevens. 
 
 The widow is entitled to interest or mesne profits up to the time her dower is 
 assigned to her. [-429] 
 
 This case has already been before the Court of Appeals, and a decree 
 made, allowing the defendant dower, and directing her to account for the 
 rents and profits of the land of which she had been in possession since 
 her husband's death. (See ante, 46.) In Jane, 1835, the case came up 
 again before Chancellor Johnston, on exceptions to the Commissioner's 
 report, in which the defendant was allowed one third of the rent of the 
 land occupied by her, in addition to the gross sum allowed her out of the 
 sales of the land for dower. The Chancellor sustained the plaintiff's first 
 exception objecting to the report in this particular; and the defendant 
 appealed, 
 
 J. J. Calchvell, for the appellant. That the widow is entitled to one- 
 third of the rents and profits — cited Ca. Temp. Hard. 25 ; Graham v. 
 Graham, 1 Yes. Sen. 262; Hamilton u. Mohun, 1 P. W. 122; 1 Roper's 
 Husband and Wife, 450; Oliver v. Richardson, 9 Ves. 222; Dormer v. 
 Fortescue, 3 Atk. 130-1 ; Mundy v. Mundy, 2 Ves. 122. 
 
 Herndon, contra. 
 
 Chancellor Johnston. I am satisfied I was wrong in sustaining the 
 plaintiff's first exception to the Commissioner's report. 
 
 The Court, in May v. May, (1 Bailey, 277,) say, that a widow is 
 entitled, either to interest or mesne profits up to the time her dower is 
 allowed her: so that, in this case, injustice was done in disallowing both. 
 
 The authorities quoted by the appellant's counsel, have fully satisfied 
 the Court, that mesne profits have always been allowed in equity. 
 
 The motion to reverse so much of the circuit decree as sustains the 
 plaintiff's first exception to the Commissioner's report, is reversed. Of 
 course the report stands confirmed. 
 
 Chancellors De Saussure, JonNSON and Harper, and Justices Gantt, 
 Richardson, O'Neall, Evans and Butler, concurred. 
 
 *430] 
 
 *Edward H Britton and Wife, and another, v. Francis John- 
 son, Executor of Wm. Johnson, Sen., and Wm. Johnson, Jun. 
 
 Testator by his will, made specific bequests to his grand-children, and lent the rest 
 of his estate to his wife for life, and then directs viz. : — " And at her decease I 
 desire that my executor do advertise and sell, and eqvalh/ divide all my estate 
 between my children and or their heirs." At the execution "of his will, and at his 
 death, testator had a wife, two sons, both of whom had children, and two grand- 
 daughters, children of a deceased son. On a bill filed by the grand-daughters (the 
 children of the deceased son,) claiming under the residuary clause: Held, that 
 the limitation over on tlie widow's death was a vested interest, and could vest only 
 in such persons as answered the description of "children" and "heirs" of 
 children ; and none answering description of " heirs of children" but the plain- 
 tifls, they took with the two sons, on the widow's death, the sons one-third each, 
 and the plaintiffs the remaining third between them. [^^4:30]
 
 *430] COLUMBIA, JULY, 1836. 329 
 
 Where an executor, who was also a legatee purchased at his own sale, maile un'Jei* 
 the order of the Ordinary, and appointed one agent to sell and another to buy ; his 
 purchases were set aside by Chancellor Johnston, on the general principle, that 
 for the prevention of fraud, a trustee to sell sli/ill not be permitted to buy at his ■ 
 own sale; and if he does, his purchases may be confirmed or set aside, at the 
 option of the parties interested. [*434] 
 
 This cause was heard before Chancellor Johnston, at Marion, Feb. 5, 
 1835. 
 
 Chancellor Johnston. This case was taken up yesterday, for the pur- 
 pose of examining two questions. 
 
 1. Whether the plaintiffs take any, and if so, what interest, under the 
 residuary clause of the will of Wm. Johnson, sen. 
 
 2. Whether, if they take under that clause, they have a right to avoid 
 the purchases made by Francis Johnson, the executor, at his own sale, as 
 set forth in his answer. 
 
 The first question is a very difficult one : and I could have wished the 
 counsel had referred more liberally to authorities, and assisted the Court 
 more than they did with the reflections which their own investigation of 
 the case, no doubt, furnished their minds. Left as I am without this 
 advantage, I scarcely hope to make such a decision as will prove satis- 
 factory to the parties. Indeed; I entertain such doubts as induce me to 
 request that the judgment I am about to pronounce, may be taken up 
 and subjected to the review of the Supreme Court. 
 
 On the third of October, 1823, the testator executed his will; at that 
 time, his family consisted of the following members : — 
 
 1. His wife Celia. 2. His son Francis, who had a child, Saml. W. 
 Johnson. 3. His son William, jun., who had children; and 4. Caroline 
 M. and Frances R. Johnson, two children of James Johnson, another 
 son, who had died in 1815. 
 
 The will which he executed, is in the following words : — 
 
 " 1. I give and devise to ray grandson, Samuel Wilds Johnson, at my 
 decease, one negro girl, by the name of Minda ; to him and his heirs for- 
 ever. 
 
 "2. I also give and bequeath to my son, Wm. Johnson's children, at 
 my decease, one negro girl by the name of Sarah ; to them and their 
 heirs forever. 
 
 " 3. I also give and bequeath to my two grand-daughters, Caroline M. 
 Johnson, and Frances Rebecca Johnson, at my decease, one hundred 
 dollars a piece, to be paid to them as soon as it can conveniently be 
 raised ; to them and their heirs forever. 
 
 *" 4. And after all my just debts and expenses be paid, I lend r^cioi 
 unto my wife, Celia, during her life, the free and undisturbed use L 
 of all my huids, plantation, houses, household and kitchen furniture, horses, 
 stock of all kinds, cash in hand — in short, all and every part of my real 
 and personal estate, that I may die possessed of; except what I liave de- 
 vised to my grandchildren already : and at her decease, I desire that 
 my executor do advertise and sell, and equally divide all my estate, 
 between my children and or their heirs. 
 
 "5. And I do make, nominate, and appoint my beloved son, Francis 
 Johnson, sole executor, &c."
 
 330 SOUTH CAROLINA EQUITY REPORTS. [*431 
 
 He died in 1825, leaving this will in fall force— his family consisting of 
 the same members as at the time he executed the will. 
 
 His widow, to whom he ha(^ lent the bulk of his property for life, died 
 in 1830. 
 
 Edward 11. Britton, having married Caroline M., one of the daughters 
 of the testator's son, James, now joins with her and the other daughter, 
 Frances Rebecca Johnson, as plaintiffs in this suit, in claiming an interest 
 under the fourth or residuary clause of this will ; which claim the testator's 
 sons, William and Francis, who are defendants, resist. 
 
 I have derived no assistance from the cases quoted, for the purpose of 
 showing when the term " children" includes grandchildren, and when it 
 does not. 
 
 There can be no pretence here, that the two children of James Johnson 
 can fall within the description of "children" of the testator. If they do 
 not take under the description of "heiis of testator''s children,''^ t\xQj 
 must be excluded. The cases quoted hav*^. therefore no application. 
 
 It appears to me that this controversy turns upon the question — whether 
 the limitation over, upon the death of the testator's widow, constituted at 
 his death a vested interest. And I think it did. The test of a vested 
 interest is, that it is made to take effect upon no other condition than the 
 possession's becoming vacant by the cessation of title in the person to 
 whom the prior enjoyment is bequeathed: Whoever has a right to step 
 in whenever the prior incumbent gives way, has a vested interest; who- 
 ever is so described by the testator as to be restrained from taking pos- 
 session by no other condition than that it be vacated, has a vested right 
 under the will. 
 
 *4^'>1 *-^^^ the rights of a testator pass out of him at his death; and 
 ""-J such of them as he constitutes vested interests, must vest in such 
 persons as at his death come under the description he in his will gives 
 of his legatees. 
 
 If the testator here had given to his children, and some of them had 
 died between the making of his will and his death, their children would 
 not have answered the description, and would not at common law and 
 independently of the Act of Assembly, have come in. Bankhead t'. Car- 
 lisle, 1 Hill's Ch. Rep. 357. 
 
 If he had given to the "heirs" of his children, and all his children had 
 been <alive at his death, none of their children could have come in ; because, 
 as the children could not have "heirs" until their deaths, there would 
 have been no person, at the moment the will began to operate, to answer 
 the description of the legatees. 
 
 As the interest given in this case was a vested interest ; as it was not to 
 spring up upon a contingency ; as its enjoyment was made to depend on 
 no other condition, than the possession being vacated by the widow's 
 death, it must vest at the testator's death, or never. And it could vest 
 then only in such persons as were designated by the words of the will. It 
 could vest in such persons only as were at the testator's death his "children," 
 or " heirs of his children." 
 
 William and Francis Johnson, at that time, answered to the description 
 of "children ;" the children of James Johnson answered to that of "heirs 
 of children." And in my opinion, these, among them, took upon the 
 death of the widow.
 
 *432] COLUMBIA, JULY, 1836. 331 
 
 It is contended that the testator intended that William and Franci.s 
 shonld lake, if alive at their mother's death, but that if either or both of 
 them shonld die before that time, his or their "heirs" should take in lien, 
 of their parents, and that these were tlie heirs meant by the testator. 
 
 But we are not to make the testator use unnecessary words ; nor hold 
 any words which he has used to be unnecessary, merely to effectuate a 
 supposed intention. M'Donald's case, 2 Const. Hep. 94. This we should 
 do, if we adopt the construction contended for. William and Francis 
 would, as "children," have taken a vested interest in the remainder in 
 question : which would have been transmissible, and would have come to 
 their "heirs," in case of their dying before their mother. So that the 
 " heirs" needed not that the testator should take any notice of them. If 
 we adopt the construction contended for, the provision for the heirs is 
 mere surplusage. 
 
 *If it be argued again, that the testator looked to the possibility r^.oo 
 that William and Francis, his children, who were alive when he '- 
 drew the will, might die before himself, and that in that ca<e he wished 
 their "heirs" to take their place, can any one show, from his language, 
 that this was his intent? In such cases as I have supposed, the " heirs" 
 of William and Francis, would have come in only as "heirs of children" 
 Would not the children of James have answered to the same description ? 
 Why then should they have been excluded, while the others were received. 
 My opinion, then, is, that the plaintiffs take along with William and 
 Francis under the clause in question. And I am somewhat confirmed in 
 the opinion that this was the testator's real intention, from expressions 
 used in the three first clauses. 
 
 In these clauses, the testator gives specific legacies ; 1st, to the child 
 of Francis ; 2d, to the children of William ; 3d, to those of James. So 
 far, all the families of his children seem to have stood in equal favor with 
 bim. We should not on light grounds, after this, suppose that the tes- 
 tator intended to give the residuum of his estate to two families in exclu- 
 sion of the third. And the words he uses, in giving to his grandchildren, 
 by no means show that the specific legacies were intended to be all they 
 should ever receive from his estate. He says they shall have these lega- 
 cies "at his death ;" leaving to them the right of receiving more at his 
 wife's. 
 
 But another question is — what share do the children of James take with 
 William and Francis ? The direction is, that the residue be equalbj 
 divided between children and the heirs of children. 
 
 At first I thought that the legatees must each take an equal share. 
 That they should take per capita. But more reflection has inclined me 
 to a different opinion, and one which I the more readily adopt, because it 
 harmonizes better with that equality at which it appears, by i)utling 
 together the three first clauses and the fourth, the testator aimed. I do 
 not know well how to express the sense in which the ])hrase, "equally 
 divided between my children, and or their heirs," strikes me. The best 
 I can do, is to say that it appears to me the testator used the words 
 "heirs of children"," as an equivalent for a child; that he rated them 
 equally, and directed that the proi)erty should be divided equally, upon 
 that principle. I cannot make this as plain as I wish. *I cannot r^^g,^ 
 convey to others what I think I plainly perceive. And I shall '- 
 not labor it.
 
 332 SOUTH CAROLINA EQUITY REPORTS. [*434 
 
 The result is, that the residuum is to be divided into three parts ; of 
 which one is to go to the two children of James Johnson, (equally between 
 them,) another to William, and the third to Francis. 
 
 The second question is, whether the plaintiffs have a right to set aside, 
 the purchase of certain slaves made by Francis, the executor, at his own 
 sale, (a) 
 
 It appears, by his answer, he made the sale under an order of the Ordi- 
 nary ; that he appointed one agent to sell, and another to buy for him. 
 These circumstances he states, as reasons for confirming his purchases. 
 But if the doctrine, that a trustee to sell cannot purchase, were at all 
 (juestionable (which it is not), I should hold the circumstances relied on, 
 as going very far to condemn the sale. 
 
 Here is a trustee blinding the bidders by employing a by-bidder, and 
 having such a control of the auctioneer's hammer, that he can bring it 
 down instantaneously, whenever he thinks fit. And shall such machinery 
 sanctify what the law would otherwise condemn ? 
 
 That such purchases are clearly illegal is too well settled to admit of 
 doubt. I have expressed my opinion briefly in Wiggins' case, and in the 
 case of Crispin v. Taylor ;(6) in both of which the Court of Appeals 
 concurred with me. 
 
 (a) It will be observed that this part of the decree w<as not appealed from ; and 
 further, that the decree itself was pronounced before the decision of the Court of 
 Appeals in Stalliugs and wife vs. Foreman, ante 401. R. 
 
 (6) James R. Crispin vs. John Taylor. 
 
 Purchase by an administrator, (who was also a distributee,) at his own sale, at a 
 price less than the appointment, set aside by Chancellor Johnston, on the ground 
 that a trustee to sell cannot purchase at his own sale, and the administrator 
 ordered to account for the difference between his bid and the real value. Decree 
 coiitirnied by Appeal Court, as to setting aside the sale, but modified by ordering a 
 re-sale of the property. [*4o5] 
 
 Practice on sales by executors and administrators being set aside, is to order a 
 re- sale of the property, and if more be bid than was bid before, that it go to the 
 highest bidder ; if not, the first sale is afiirmed [*43(i] 
 
 The bill was filed against the defendant, as administrator of the estate of Anne 
 Sibley ; and seeks, amongst other things, to set aside the purchases of the delcndant 
 at the administration sale made under an order of the Ordinary, of a female slave 
 named Sarah, and some other articles of small value, at an inadequate price. The 
 slave had been appraised at one hundred dollars, and was purchased by the defend- 
 ant at fifty dollars. There was no evidence of unfairness, in procuring or managing 
 the sale; on the contrary, it appeared that the sale was fairly conducted. The 
 defendant was a distributee; and in his answer states, that the plaintifl' was present 
 at the sale, and made no objection. It appeared also that the solvency of the 
 defendant was doubtful ; but the evidence on this point was applied exclusively to 
 another ground for relief, and is not adverted to, either by the Chancellor or the Court 
 of Appeals, as having any bearing on the sale 
 
 The cause came on before Chancellor Johnston, at Newberry, July 1833, and in 
 relation to the sale, he made the following decree : 
 
 With respect to so much of the bill as seeks to set aside Taylor's purchases at his 
 own administration sale, although very contemptible, and evidently thrown in to 
 help out the other parts of the bill, in case of need, I see not how, on principle, it 
 can be dismissed. I consider the law as settled on the point ; and not to be mis- 
 taken. No trustee to sell, can become a purchaser: and, if he does, he will be held 
 to his purchases, or they will be set aside, as of course, at the option of parties 
 interested in the property. They are not bound to show unfairness in the sale.
 
 435] 
 
 COLUMBIA, JULY, ISSG. 333 
 
 *In the last-mentioned case, the very question was decided 
 which was made here. It was ruled that the circumstance of the 
 
 [*435 
 
 trustee being a co-cedui que trust, gives him no right to buy from himself. 
 
 The rule is one of policy, made to avoid abuse, which it may not be in the power of 
 the cestui que trust to prove. Nor does it alter the case that the trus^tee is one of the 
 cestui que trusts, and, therefore, interested in the property. One who is at the same 
 time trustee, and one of several cestui que trusts, may be benefitted, but cannot be 
 injured, by an unfair purchase. The temptation to abuse, although less th:iii when 
 he is trustee merely, nevertheless exists ; and the reason of the rule remaining, the 
 rule remains in full force also. 
 
 The right to set aside such purchases, is a mere equity, and may be waived. I 
 have but little doubt the plaintiff was present at the sale and acquiesced in it ; and 
 if that had been proved, it would have been worthy of consideration, whether it did 
 not amount to a waiver, But there was ao such proof, the answer is no evidence 
 on this point. 
 
 It does not appear whether the sale was confirmed by the Court of Ordinary Avhich 
 ordered it. If it had been, (a practice which might be adopted with much advan- 
 tage, all the parties being summoned,) it would be worth while to consider whether 
 the sale would not be good, as res judicata. But no such matter came out in proof. 
 Again, the ground for avoiding such purchases is iraud. If the Act of Limitations 
 had been pleaded, and the knowledge of the purchases brought home to the plaintiff, 
 more than four years before filing the bill, it might have been a question whether 
 the equity to set aside the purchase in question was not barred. But there was no 
 such defence. I throw out these questions, in order to draw the attention of the 
 bar to them in future cases; for purchases by executors and administrators are of 
 daily occurrence, and all the questions affecting them are of the last importance, 
 not only to such officers, but to all the widows and orphans within this jurisdiction, 
 and I believe none of these questions have ever yet been raised in our Courts. 
 
 I made some remarks touching them, in Lowery & Lowery, from Sumpter, but 
 the case went off on other grounds as well as I recollect. It has not been reported. 
 
 There is a qviestion as to the proper practice, on setting aside such sales. Shall 
 a resale be ordered, or shall the trustee account for the value of the property ? 
 
 In my opinion, that depends on the number of applicants for setting the sale aside. 
 If all the cestui que trusts apply, then a resale ought to be ordered. If, however, 
 only part of them make such application, an account should be taken. It will be 
 taken for granted, that those who do not complain are satisfied, and affirm the sale. 
 In this case, none of the distributees complain, except the plaintiff. An account 
 will therefore be ordered. 
 
 Decreed — That the purchases by the defendant at the sale made by him as admin- 
 istrator of Anne Sibley, so far as they are enumerated in the bill, be so far set aside 
 that the defendant be held accountable for the articles of property so purchased by 
 him, at their true value. 
 
 And that all matters of account growing out of, or connected with the pleadings, be 
 referred to the Commissioner to report thereon, with leave to report any special 
 matter. 
 
 The Commissioner, at the same Term, reported — That the plaintiff was present at 
 the sale, and made no objection to defendant's purchase, which was fair; that inas- 
 much as the Chancellor in his decree had said, that if the plaintiff' was present at 
 the sale, it might make a different case ; and as the plaintiff's share of the difference 
 between the real value of the property sold, and the true value is very inconsider- 
 able, (but twelve dollars, sixty-two and one-half cents,) and as he was as much in 
 fault as the defendant, the Commissioner recommends that the defendant be not 
 allowed the excess beyond the real value proved. 
 
 On the report coming before the Chancellor, he ordered the Commissioner" to add 
 the distributive share of James R. Crispin and wife, of the excess of value of the 
 property proved on the reference over the bids of John Taylor, to the amount 
 reported in their favor," and for which purpose the report was re-committed, and 
 being amended accordingly, was confirmed. 
 
 The defendant ajipealed on the following, grounds : 
 
 1. Because the Chancellor erred in setting aside the sale, at the instance of the
 
 334 SOUTH CAROLINA EQUITY REPORTS. [*435 
 
 The ground taken for avoiding such sales is that fraud has been practiced, 
 which cannot be proved. If a trustee to sell, can purchase, he may lock 
 up in his own breast secret qualities of the article sold, which would, if 
 *4'^ri tlis<^^<^s6d, greatly enhance its * price. The case of a gold mine 
 -I on land, unknown to all but the vendor, has been frequently put. 
 The qualities of slaves may be urged as another. There is no end to the 
 arguments against such sales. 
 
 Then, if fraud is the ground for avoiding such contracts, (if contracts 
 they may be called, where there is but one contracting party,) how can 
 ^i^Tl ^^^® vendor's having an interest alter the case ? What *is lost by 
 -J him iis cestui que trust, is more than made up by his gains as pur- 
 chaser. While others divide the loss with him, he has all the gains to 
 himself. And, indeed, he cannot be said to sustain any loss, who defrauds 
 himself. What he takes out of one pocket, he puts into another. 
 
 The case of Taylor v. Crispin, settles another point. It is, that where 
 such a sale is set aside, the trustee shall not account for the real value of 
 the property ; but that shall be ascertained by a re-sale. 
 
 I suppose that the plaintiffs, who ask to set the sale aside, cannot affect 
 Wm. Johnson's interests, who choses to let it stand. Therefore he will 
 be entitled to his share of what the executor purchased at — neither more 
 nor less, let the property sell for what it may, at the re-sale ; for that the 
 executor must account to him, with interest. 
 
 As for the plaintiffs, they will be entitled to their share of the re-sale 
 price, with hire of the negroes for the time the executor has had them. 
 
 It is decreed that Francis Johnson deliver up to the Commissioner the 
 negroes he purchased, with their increase ; and that the Commissioner do 
 proceed to sell them, after giving thirty days notice. And that the said 
 Francis do account for their hire. 
 
 plaintiff, who was present at the sale, and not objecting thereto, especially after a 
 
 lapse of four years 
 
 2. Because the Chancellor, after setting aside the sale, erred in decreeing that 
 defendant should account for the difference between the sale and the value of the 
 property as proved, but should have ordered a resale at defendant's risk. 
 
 Caldwell ^ Fair, for appellant. 
 
 Hakper, J. We concur in the principle announced by the Chancellor, thnt the 
 defendant's purchase of the negro woman was liable to be set aside at the option of 
 the parties interested. It does not appear to me that the plaintiff's barely being 
 present at the sale, could be construed into an acquiescence. I do not know by 
 what rule he was then called upon to express his dissent. I refer to the case Ex 
 parte Wiggins, (a) decided at the present sitting, for my views on the subject. The 
 Chancellor was correct in determining that the defendant could not hold his pur- 
 chase. But, in strictness, the course is, not that tlie executor should account for 
 the difference between his bid and the appraised value, (for the appraisement is but 
 prima facie evidence of value,) but, that the property should be re-sold. Any cred- 
 itor or distributee has a right to require a re-sale. It is to be regretted that so 
 trifling an interest should occasion this protracted litigation, but defendant may 
 stand upon his right He must, however, pay the costs of the appeal and re-sale. 
 
 It is ordered, that the slave in question be exposed to sale by the Commissioner on 
 some public sale day, on the same terms that she was before offered to sale by the 
 defendant ; and that if more money shall be bid for her than was before bid by the 
 defendant, she be sold to the highest bidder ; otherwise defendant's purchase to be 
 affirmed. 
 
 Johnson, J. & O'Ne.vll, J., concurred. 
 
 (a) 1 Hill, Ch. 353. 
 
 1
 
 *437] COLUMBIA, JULY, 1836. 335 
 
 The re-sale of the negroes, to be made at Marion Conrt House, upon 
 some convenient sale day, upon the following terms — to wit: upon a 
 credit of one j^ear from the day of sale, with interest from the said day of 
 sale ; the purchasers giving bond with personal security to be a})proved 
 by the Court, to secure the pnrcliase-money. 
 
 The defendants appealed, and now moved to reverse the decree on the 
 following grounds : 
 
 1. Because, according to the legal construction of the will of the tes- 
 tator, the plaintiffs have no legal claim, and their bill should have been 
 dismissed. 
 
 2. Because, according to the provisions of the said will, all the property 
 now sought to be partitioned was given to the defendants. 
 
 Graham and Gregg, for the appellants, contended that the intention of 
 the testator is the controlling rule in the construction of wills ; but that 
 intention must be ascertained and construed according* to the r* ioq 
 established rules of law. Bootli v. Blundell, 19 Ves. 521, 4 Kent's L 
 Com. 519. Unless the intention is clearly expressed otherwise, the 
 word " heirs" must be construed technically, and be regarded a word of 
 limitation, and not of purchase. Preston on Est. 365, 368 ; Thelusson 
 V. Woodford, 4 Ves. 329 ; llolloway v. Holloway, 5 Ves. 401 ; Deane 
 V. Test, 9 Ves. 152 ; Crooke v. Be Vandes, 9 Ves. 205 ; Ilodgson v. 
 Ambrose, I Doug. 341 ; 1 Cox, 67. 
 
 Tills will was drawn before the Act of 1824, when words of perpetuity 
 were necessary ; and the word " heirs" was used to convey the fee. What- 
 ever inequality there may be in the disposition of his property, the Court 
 cannot interfere to make a will for the testator; that was his privilege : 
 and to allow the plaintifts to come in, a vague and conjectural meaning 
 must be affixed to the word " heirs ;" or the Court must actually supply 
 other words. Words cannot be supplied on conjecture, although probable, 
 Chapman v. Brown, 3 Burrows. Rep. 1634 : nor rejected on suspicion of 
 mistake, Milne v. Slater, 8 Ves. 306. To authorize the Court to supply 
 the words, the mistake must be plain and palpable. Horry v. Deas, 2 
 Eq. Rep. 126; Jackson v. Sill, 11 John. 201; Mellish v. Mellish, 4 
 Ves. 45. 
 
 In what character are the plaintiffs to take ? The devise is to his 
 "children." He had at the execution of his will, and at his death, but 
 two, the defendants : it must be that he meant them. The word " children" 
 will not include grandchildren in a devise, unless there can be no other 
 construction. Reeves u. Brymer, 4 Ves. 693 ; Radcliif v. Buckley, 10 
 Ves. 195 ; Crook v. Brooking, 2 Vern. lOT ; Orford v. Churchill, 3 Ves. 
 & Beames, 69. 
 
 The woi'd "between''^ is used in this clause. Tt is not in strictness 
 synonymous with amoiig. Belween relates to two, among to more than 
 two. And this distinction is observed in our statute of distriI)utions ; 
 and is applied in the construction of wills in many cases — 2 Kent'^s Cora. 
 387, note ; 1 Bro. Ch. 117 ; 1 Co.x, 234. 
 
 To read the clause in question as it stands, "and or their heirs," it is 
 nonsense. Strike out the word ' or^ and the meaning is intelligible — an 
 absolute fee is given to the defendants. Strike out 'and/ and the devise 
 is to his children, or to persons unknown. The Court may suppose an
 
 336 SOUTH CAROLINA EQUITY REPORTS. [*43S 
 
 omission — will it supply it ? With whose names ? Nothing can benefit 
 the plaintiffs but the addition of a clause to the will, in which their names 
 are to be inserted^ and then change ' or'' into ' and\ 
 *i^ql *'^f'^6 word "their" in the clause, has a grammatical reference 
 -^ to "children." Why should the word "heirs" be changed from 
 its technical meaning, and made a word of purchase to include these 
 plaintiffs ? There is nothing in the will to authorize it. The testator 
 had already provided for them, and in doing so, he carefully, and it would 
 seem in contradistinction to children, used the words "grandchildren.^^ 
 If the Court resort to conjecture for the testator's meaning, why should 
 it not as well be supposed that he gave the property to his sons then 
 living, and in the event of the death of either before his death, that in 
 such case their children should take ? Or if the word "heirs" is to be 
 construed a word of purchase, why should its remeaning be restricted to 
 the children of James? Why not embrace all his grandchildren? — 
 But to enable the plaintiffs to take, the technical meaning of the word 
 must not only be changed without any such reasons drawn from the will 
 as should justify it, but its meaning must be referred exclusively to these 
 plaintiffs. In effect, making a will. 
 
 Wilkins, contra. Argued, that unless the construction of the Chan- 
 cellor prevails, there is such uncertainty and repugnance in the clause in 
 question as to render it void; and the yjlaintiffs would then be entitled. 
 Wherever there is great uncertainty the heir is to be preferred in Eng- 
 land.— Pow. on Dev. 611; Cowp 99; 6 Cruises, Dig. 173. And the 
 same rule must apply here where all the children are heirs. And the 
 strong inclination of our Courts in all cases of doubt and uncertainty is 
 to give such construction as will let in all the testator's heirs. — Myers v. 
 Myers, 2 M'C. Ch. 257 ; 2 Binney, 19, 20. 
 
 Some meaning and effect should, if practicable, be given to all the 
 words of the testator. — 1 Co. Lit. 9 a, 2 Vern. 545 ; 3 Eng. Con. Ch. 
 Rep. 573, Butter v. Ommany. This can only be done by the interpreta- 
 tion put on the will by the Chancellor ; for to make the word " heirs " a 
 word of limitation merely, as designating the quantity of interest given 
 to his sons, would be to discard a part of the will. It is not a direct de- 
 vise to his children and their heirs ; but a direction that his estate be 
 sold and equally divided between his children and their heirs. Now 
 this was impracticable, regarding the word " heirs " as a word of limita- 
 tion, conveying the fee to the sons. Some other meaning then must be 
 intended, in order to give effect to the will. Discarding the word " or " 
 *4401 *^^ inserted by mistake, and the estate is equally divided between, 
 or among, (for the terms are used synonymously) his children and 
 the heirs of his children. Who answers the description of heirs of 
 children ? Not the children of Francis and William — nemo est hceres 
 viventis His son, James, was dead, and left two children. They are 
 the only persons answering to the description of heirs of children ; and 
 consequently they must take jointly with the sons, in order fully to carry 
 out the testator's intention as expressed in his will. And this construc- 
 tion is much strengthened by the fact that the children of his son, James, 
 are but slightly provided for in the other clauses, and he evinces a dispo- 
 sition to put them on the same footing as his children. But apart from
 
 *440] COLUMBIA, JULY, 1836. 337 
 
 this view of the case, he insisted that tlie phaintift's might well take under 
 the general word "children." Cited Horry v. Deas, 2 Eq. Kcp. 123 
 note; Wyth v. Blackman, 1 Yes. sen. 196; Deveaux v. Barnwell, ] Eq. 
 Rep. 49Y ; Roe v. Qnartley, 1 T. R. 634 ; Radclifie v. Bnckley, 10 Ves. 
 195 ; Goodtitle v. Herring, 1 East 264; Keith v. Perry, 1 Eq. Rep. 353. 
 
 Chancellor Johnston delivered the opinion of the Court. 
 This Court concurs with the Chancellor who delivered the Circuit de- 
 cree ; the motion is therefore dismissed. 
 
 Chancellors Johnson and Harper, and Justices O'Xeall, Gantt, and 
 Richardson, concurred. 
 
 Butler, J., dissenting. I cannot subscribe the opinion of the Court 
 in this case. I think the construction given to the will, equally op])osed 
 to the actual intention of the testator, and the legal import and tcclinical 
 meaning of the language he uses. 
 
 In the three first clauses of the will, the testator gives to his grand- 
 children, all that he intended specifically for them ; and in the fourth 
 clause, it seems to have been his design to give the residue of his prop- 
 erty to his wife and children. That is, after the determination of the 
 life estate to his wife, to divide the remainder between his children, 
 Erancis and William, share and share alike. He uses language suffi- 
 ciently significant to convey his meaning. After his wife's death, the 
 testator directs his executor to sell and divide the estate between his 
 children " and or their heirs." AVhat children did he mean? Did he 
 mean his children *alive at the time, or did he have reference to a r^,,-i 
 deceased child ? Or did he include in the word "children" his '- 
 grandchildren, whom he had s{)ecially called, in the clause above, his 
 grandchildren. He obviously meant his surviving children. To whom 
 then should the adjective pronoun their have reference ? By every rule 
 of grammar, it relates to and includes only his children ; and of conse- 
 quence then it is to his children and their heirs, that he gives the re- 
 mainder of his property. To read the clause in this way, is to give to 
 the word heirs its ordinary legal signification, to make it a word of lim- 
 itation and not of purchase. I do not say that it may not be a word of 
 purchase. The intention to make it a word of purchase should be very 
 obvious, and the persons to take by it should be clearly indicated, before 
 the legal construction of it should be violated. If the testator, in the 
 case under consideration, intended to refer specifically to an}'' persons to 
 take by the word "heirs," it was the children alone of his surviving chil- 
 dren. That is, in the event of cither's death, their children to come in 
 and represent the parent. But I am averse to considering contingencies 
 until they happen. If either William or Francis had died l)efore their 
 father, it is probable the father would have altered his will in conformity 
 to that circumstance. To make the word "heirs" refer exclusively to 
 James' children, is not only to change its meaning, but to give its refer- 
 ence ; and in effect, it is to add a clause to the will. It is asked, why 
 should the testator make such a difference between his surviving children, 
 and the representatives of his son, James ? I can only answer, that as 
 far as the testator was explicit, he certainly made a discrimination be-
 
 338 SOUTH CAROLINA EQUITY REPORTS. [*441 
 
 tween his grandchildren. To one grandchild he gives a negro ; to 
 William's children he gives another negro, and to James' two children he 
 gives $100 each. Whether this was the result of caprice or justice, I 
 will not inquire. It may have been, and probably was the latter. This 
 depends upon the advancements which the testator may have made, and 
 many other circumstances of which we can take no notice. I am not for 
 going out of my way in any etfort (perhaps vain and futile) to do imag- 
 inary justice. I like that justice which is prescribed by legal definition 
 and usage. This gives the security of rule ; the other opens the door to 
 the uncertainty of discretion. The Court makes the word heirs refer 
 exclusively to James Johnson's children, and I make it refer exclusively 
 *i49i ^*^ ^^^ ^representatives of Francis and William, whoever they 
 -' might be ; (that is, if William and Francis had not alienated the 
 property before their death,) and this regards the word as a word of 
 limitation indicative of the quantity of estate given. But if it should be 
 regarded as a word of purchase, I think Francis' and William's children 
 would take by it in preference to James'. I am for letting the fourth 
 clause read as though the word or was not in it ; and if the word or is 
 to have any meaning, it cannot make the word heirs refer exclusively to 
 the daughters of James, and let them come in and take an equal share 
 with Francis and William. The pecuniary legacy given to them by their 
 grandfather, was all that he intended specifically for them. 
 
 Evans, J., also dissented, but gave no reasons. 
 
 Earle, J., absent. 1
 
 CASES IN CHANCERY 
 
 ARGUED AND DETERMINED IN THE 
 
 COURT OF APPEALS OF SOUTH CAROLINA. 
 
 ©olntnbia — December, 1836. 
 
 CHANCELLORS AND LAW JUDGES PRESENT. 
 
 Hon. henry W. DE SAUSSTJRE, 
 Hon. DAVID JOHNSON, 
 Hon. WM. HARPER, 
 Hon. J. JOHNSTON, 
 Hon. J. B. O'NEALL, 
 
 Hon RICHARD GANTT, 
 Hon. J. S. RICHARDSON, 
 Hon. JOSIAH J. EVANS, 
 Hon. B. J. EARLE, 
 Hon. a. p. BUTLER. 
 
 John M. Niolon vs. James K. Douglas, and Others, 
 
 A debtor may lawfully assign his whole estate for the benefit of such creditors as 
 shall release him. [*443] 
 
 A debtor executed an assignment of his whole estate to trustees, in trust for the 
 benefit (after discharging existing liens) of all such creditors as should, within six 
 months, establish their demands, accept dividends and give releases in full ; and 
 excluding others who should refuse to comply with these terms: — On a bill by a 
 creditor, who refused to accept, to set aside the deed of assignment as fraudulent 
 and void, it was held to be valid. [*444] 
 
 A fiiiling debtor may give preferences among his creditors, and it seems impractica- 
 ble to prevent the exercise of this right. The subject considered in reference to 
 a bankrupt system. [*44G] 
 
 The cases where assignments of debtors which required creditors to release, 
 reviewed. [4-2] 
 
 In all the cases the vice lies not merely in requiring a release, but in putting 
 the assets in such way as to be inaccessible to ordinary process, and then 
 establishing such control over them in the grantor, that he could at his pleasure 
 make or withhold payment. [*453] 
 
 Our insolvent debtor's act recognizes the right of a debtor to assign for the benefit 
 of releasing creditors. [*454] 
 
 Heard by Chancellor Johnston, at Camden, February, 1835. 
 
 The bill was filed 7th July, 1834, and states the following circum- 
 stances : — 
 
 On the 30th April, 1833, Ralph Johnson executed an assignment of 
 his whole real and personal estate, particularly two town lots in Camden, 
 eight slaves, household and kitchen furniture, working tools, debts, &c., 
 to James K. Douglas, Benjamin Bineham, John J. Blair, and James S. 
 Stewart, in t7'ust, to sell the same on the best terms they could obtain,
 
 340 SOUTH CAROLINA EQUITY REPORTS. [*443 
 
 either at public or private sale, and on such credit as they may deem 
 pro[)er, and to collect in the debts due to him, and to pay therefrom — 
 
 1. All existing judgments against him. 
 
 2. To pay all the costs and charges of executing the assignment. 
 
 ^ , -, * " 3. Shall pay out of the remainder of said moneys in rateable 
 -' and equal proportions, to all such creditors of the said Ralph 
 Johnson, upon bonds, notes, obligations and accounts, as shall render in 
 the same to the said assignees, and establish their demands, within six 
 months from the date of these presents ; and who shall at the time of 
 establishing said demands, signify and accept in writing, that the divi- 
 dend so to be received, shall be a free discharge of their said claim against 
 the said Ralph Johnson; and upon the ultimate payment of said dividend, 
 shall grant such full and final release : hereby debarring and excluding 
 all and every creditor of the said Ralph Johnson, from any advantage or 
 benefit whatever, under any provision of this assignment, who sha-11 neg- 
 lect or refuse to I'ender in and establisli his, her, or their demand, and 
 signify and assent in the manner prescribed aforesaid, to accept of their 
 dividend as a full and final discharge of their claim against the said Ralph 
 Johnson." The assignees accepted the trust, and undertook the execu- 
 tion of it on the 3d May, 1 833. 
 
 Soon after the execution of the deed, the sheriff of Kershaw levied on 
 the house and town lots, and seven of the slaves, and sold them to satisfy 
 executions in his office against Ralph Johnson, older than the deed ol 
 assignment; and paid them in full from the sales thereof. In the year 
 1S33, the assignees sold the remainder of the property under the deed, 
 which produced a large sum of money, how much plaintiff does not know ; 
 and now hold the same ready to pay over to the creditors of Johnson, 
 who have accepted the terms of the assignment. 
 
 On the 4th April, 1834, plaintiff obtained and entered up a judgment 
 against Ralph Johnson, in Kershaw district, for $2172 99, with interest 
 on $1784 30, from 31st March, 1834, with $17 costs of suit, on notes of 
 hand which arose, and are dated previous to the date of the deed. 
 Plaintiff refused to accept under the deed, and issued his fi. fa. to the 
 sheriff, which is still unsatisfied, and was returned nulla bona. 
 
 On the 4th April, 1834, Aaron Burr, administrator of D. Button, 
 recovered and entered up a judgment against Johnson, for the sum of 
 $102 and interest, together with $15 96 costs of suit, and issued his Ji. fa. 
 thereon, which is still unsatisfied. 
 
 On the 2d November, 1833, G. H. Dunlap & Co. recovered and 
 entered up a judgment against Johnson, for $57 94, interest and 
 *4451 *costs of suit, and issued execution thereon, which is still un- 
 -' satisfied. 
 
 Plaintiff alleges that the deed is void in law, because Johnson conveyed 
 his whole real and personal estate in trust, to pay only such creditors as 
 shall accept a dividend of their claims, and thereupon grant a full dis- 
 charge of their whole demand ; thereby delaying and hindering creditors 
 from recovering their full claims ; which plaintiff submits is such a fraud 
 upon creditors, as avoids the deed wholly : that if this be true, the 
 moneys in the hands of the assignees is liable to be paid over to these 
 executions. Plaintiff has applied to the assignees to pay his execution, 
 but they refuse to do so ; plaintiff therefore prays that the assignees may
 
 *44d] COLUMBIA, DECEMBER, 1836. 341 
 
 be ordered to pay over to this execution, and tlic two otlier executions, 
 the funds in their hands, according their priority. 
 
 The joint answer of J. K. Donglas, B. Bineham and J. S. Stewart, 
 admit the facts set forth in the bill, refer to the answer of Blair for their 
 doings in the assignment, and insist that the assignment of Johnson is 
 not "calculated" to hinder, delay or defraud creditors, and is valid in law 
 and equity; and pray to be hence dismissed with their costs. 
 
 The answer of John J. Blair alleges, that the assignees acted in strict 
 pursuance of the Act of Assembly of 1828, on the sulycct of assignments ; 
 and by their order the property was sold — and therefrom he has in hand 
 twelve hundred dollars, eighty-eight cents, to be paid on the debts due 
 by Johnson. That claims against Ralph Jolinson have been presented 
 to the assignees by the creditors, amounting to $1243 63 without interest, 
 who have accepted the terms of the deed. He insists that the assignment 
 is valid in law and equity, and prays to be dismissed with his costs. 
 
 The answer of Ralph Johnson admits the facts set forth in the bill, and 
 says the deed was not intended to hinder, delay or defraud his creditors, 
 but contained a bona fide surrender of his whole property, and his ol)ject 
 was to put his creditors on an equal footing, which he insists he had a 
 right to do in law, &c. 
 
 The case, after the reading of the bill and answers, was argued 
 February 23d and 24th, 1835, by Wethers and John M De Saussure 
 for the plaintiff, and by ilf Willie for the defendants. It was admitted 
 that all the plaintiff's demands on which he recovered judgment were due 
 before the assignment, and that Burr and *the others stated in the r^iip 
 bill, were also subsisting creditors. The following decree was ^ 
 afterwards delivered : — 
 
 Johnston, Chancellor. The authorities cited at the hearing of 
 Vaughan v. Evans, 1 Hill C. R. 414, certainly left on my mind a strong 
 impression that the mere exaction of a release from accepting creditors, 
 would invalidate the assignment of an insolvent debtor. Under the 
 influence of that impression, I put the defendant's counsel to open the 
 argument of this case. The result of a careful considerarion of all that 
 was advanced on both sides, is a thorough conviction that such a position 
 is unfounded, either on princii)le or decided cases. 
 
 I am happy to find, on a recurrence to Yanghan r. Evans, that as the 
 Court was not called upon to express, so it did not express an opinion 
 as to the soundness of the position I have mentioned. As I shall have 
 occasion to advert, hereafter, to the authorities referred to in that case, I 
 shall take that opportunity to show that neither those authorities nor 
 that case establish the doctrine in question. 
 
 Whatever doubts may have been entertained or expressed, respecting 
 the morality or the policy of permitting a failing debtor to prefer some 
 of his creditors over others, his legal right to do so is too well settled to 
 admit of discussion. 
 
 Chancellor Kent, while he expressed the strongest repugnance to the 
 exercise of such a power by the debtor, was compelled to admit its 
 legality : and our own Supreme Court was constrained by the force of 
 authorities to adopt a similar conclusion. — 2 John. Ch. Rep. 578, 283; 
 1 M'C. Ch. Rep. 441, 442. 
 YoL. 1.— 45
 
 342 SOUTH CAROLINA EQUITY REPORTS. [*446 
 
 There is undoubtedly great force in the objection brought against this 
 power to prefer. But a contrary judgment has, for a great length of 
 time, and very uniformly, been })ractically pronounced by those most 
 deeply interested ; and who must, therefore, be taken to have attentively 
 considered the subject in all its bearings upon the actual concerns of life. 
 
 When we turn to the jurisprudence of England, we find that that 
 people has never deemed it prudent or practicable to lay sweeping 
 restrictions upon preferences, except in cases of traders. For that class 
 of persons the Legislature has provided a specific statutory code : but in 
 cases not falling within it, a much viider range of preference has ever 
 *ii^l ^^^^^^ allowed by the Courts, than in most of these *States; yet 
 -I nothing has come from Parliament to show that it regarded these 
 judicial decisions as subversive of true policy. Indeed, the very fact that 
 their bankrupt laws have been confined to traders, shows that in their 
 estimation they are unsuited to the mass engaged in the other avocations 
 of life : else, why draw the distinction ? 
 
 Two things seem essential to a bauKrupt system. First — that the 
 subjects of it should be such as from the nature of their business, and the 
 habits incident to its successful prosecution, have it in their power to be 
 informed, and are generally informed, when insolvency has supervened. 
 This information gives them warning when to stop. It shows them pre- 
 cisely when that crisis has occurred, after which any business operation 
 done by them, if allowed to stand, must effect a preference of some one 
 creditor, at the expense of some other ; and therefore their engaging in 
 such operation, having such information, demonstrates that they intended 
 to give a preference. It is not with them as it is with others, who, not 
 having the means of being constantly informed of their exact situation, 
 nor the habits leading them to a constant comparison of their effects with 
 their debts, may ignorantly and bona fide do an act, in the prosecution 
 of their ordinary business, which may result in a preference among their 
 creditors. With regard to the mass of the community, this difficulty 
 occurs, therefore, which does not exist as respects traders. You must 
 allow them to give preferences, and that wilfully, or you must put an end 
 to all their dealings ; for if allowed to deal at all, preferences will neces- 
 sarily result, and it will be impossible to separate those which are designed, 
 from those which are not. If you could pronounce, as in the case of 
 traders, that all preferences given by them must, probably, have been 
 given wilfully, you might set your face against them all ; but this you 
 cannot do. See the difficulty. Will you declare that no debtor shall 
 confess a judgment, or give a bond or a mortgage ? If he is allowed to 
 do so, a preference may result. But if you prohibit him, every debtor 
 must (at the peril of costs which must fall on him, or, if insolvent, on the 
 mass of his creditors) stand suit, and obstinately and dishonestly defend 
 himself against every just demand. Again, will you require every plain 
 man, when payment is demarided, to stand still and enter into a calculation 
 how much he is worth, and how much he owes, before he can venture to 
 *4481 P^^'^ *^"^ ^^^^ money he has in his pocket and *make payment ? If 
 -^ he is not prohibted from paying, it may turn out that from his 
 reserved property proving insufficient, a preference has been given. In 
 short, can you, as to the mass of men, prevent preferences, without putting 
 verbal and written, parol and special contracts, all on a footing; and
 
 *448] COLUMBIA, DECEMBER, 1836. 343 
 
 then attacliing a lien (and the same lien) to all ; or abolishing all liens ? 
 If you do this, you stop all commerce. As long as the law recognizes a 
 distinction between sealed and unsealed instruments ; between bonds,' 
 mortgages and judgments, and between the liens of judgments and exec-u- 
 tions, preferences are inevitable. The very execution of the instrument 
 may raise the jjreference. 
 
 The second thing essential to a l)ankrupt system, seems to be, that those 
 to whom it is to be ajjplicd shall iorm a distinct class, engaged in well 
 defined and unmixed pursuits. Even in England, where avocations have 
 a distinctness as yet utterly unknown to us, much confusion exists in tlie 
 application of their system, and much injustice arises from its enforce- 
 ment, owing to the intricate relation which must exist between its subjects 
 and all other portions of the community. But here, where as yet men 
 are in the daily habit of changing their pursuits, and where in fact almost 
 every man is engaged in a variety of avocations at the same time ; where 
 there is no such thing as a regular division of labor or employments, and 
 where, from the intricacy and variety of the relations of citizen to citizen, 
 no provision of law can be applied to any one without greatly afiecting 
 others, it is very doubtful whether anything like a bankrupt system is 
 suited to our condition ; or whether any restrictions, other than those 
 which experience has shown to be expedient for the mass of men, can be 
 adopted. What says experience on this subject ? The federal govern- 
 ment, after testing the expediency of a bankrupt system by ex))erience, 
 suffered it to expire, and has not renewed it. 4 Wheat. 122. Aiul 
 although each State has the right, when no such system is in exercise by 
 the federal government, to institute one for itself, it is believed not a 
 single iState has at any time, by statute, forbidden all preference among 
 creditors. The insolvent laws of most of the States either allow the 
 debtor to draw a distinction among his creditors, iu the very act of sur- 
 rendering under the law itself or sustain it if already drawn. So much 
 for the legislatures. AVith regard to the opinion of the judiciary, it is 
 remarkable, that in those States where the Courts set out with a simple 
 allowance of ^preferences, no change has been found necessary; r^jj^/q 
 while in those in which they attempted to put them down by •- 
 straining after exceptions to the acknowledged law, they have found it 
 impracticable to carry out their decisions to a system ; and many of them 
 have either vaccillated or been compelled, more or less, to retrace their 
 steps* 
 
 Surely there is something in all this calculated to raise a doubt whether 
 tliere is not some fallacy somewhere, iu that reasoning which indiscrimi- 
 nately condemns all preferences. Snrely, when we see such a long and 
 uniform toleration of the reprobated practice, we must set it down either 
 to the genius of our people, or to a settled conviction in those most con- 
 versant with the subject, that if it produces injustice, it is such injustice 
 as human laws cannot remove, unless, indeed, at the hazard of greater 
 evils; and thus we shall be brought the more cheerfully to acquiesce in 
 what our own judgments, or our own feelings, may not in all respects 
 approve. 
 
 Chancellor Kent, 2 Johns. Ch. Rep. 578, states his objection to pre- 
 ferences among creditors with his accustomed force. " Experience," says 
 he, "shows that preference is sometimes given to the very creditor who
 
 *450] 
 
 344 SOUTH CAROLINA EQUITY REPORTS. [*449 
 
 is the least entitled to it, because he lent the debt'oi" a delusive credit; 
 and that too, no doubt, under assurances, or a well grounded confidence 
 of priority of payment and perfect indemnity in case of failure. How 
 often," he continues, "has it hapjiened that that creditor is secured, who 
 was the means of decoying others, while the real business creditor, who 
 parted witli his property on liberal terms and in manly confidence, is 
 made the victim ?" Now, is it not apparent that in the Chancellor's own 
 mind there is a wide distinction between the two classes of creditors he 
 has mentioned ? That one is more and the other less entitled to be pre- 
 ferred ? That he would approve a preference, if made on grounds which 
 he could sanction ? And, after pointing out so forcibly the distinction 
 between him who colludes with the debtor and the fair business man, who 
 is entrapped, is his conclusion a sound one, that the proper corrective is 
 not to examine the evidences of the collusion, and frustrate the fraud ; 
 but to put the least meritorious and the most meritorious — him \y}\o per- 
 petrates, and him who is the victim of fraud, all on the same footing? 
 
 Let us hear the Chancellor further: — "Perhaps," says he, "some 
 influential creditor is placed upon the privileged list, to ^prevent 
 disturbance, while those who are poor, or are minors, or are 
 absent, or want the means or the spirit to engage in litigation are aban- 
 doned." This picture is well drawn, and addresses itself to our best 
 feelings. But I apprehend the Chancellor would not vacate a. judgment 
 obtained by the creditor he singles out. And if not, it deserves to be 
 considered whether the absent, or the minors, or those wanting in means 
 or spirit for litigation, are not just as likely to be left behind, if the pre- 
 ference is left to be established by priority in ohtnining judgments. 
 
 In some of the cases wherein the assignments of debtors have been set 
 aside, the instant effect of the decision was to create an inequality among 
 the creditors, and to give a preference to the creditor, whose ground of 
 complaint was that all were not put on a footing. 20 John. Rep. 451. 
 The Court, struck with the glaring inconsistency of this, with that 
 equality at v/hich it vainly aimed, has usually attempted to console itself 
 and the suitors and to cover over the contradiction, with the maxim, 
 viqilantihus von dormientibus, leges subserviuiit. But what is that, 
 but to admit that the law allows the vigilant to be x)referred ? It is 
 preference still. 
 
 Now, while I deny that it is a natural application of the maxim, vigi- 
 Jantibus, non dormientibus, to give the benefit of it to him whose only 
 necessity for coming into Court was, that another, by superior vigilance, 
 had obtained superior rights, of which a Court only could deprive him, 
 and to deny it to that other ; while I contend that this is an inversion of 
 the maxim — while I contend that the creditors who took the assignment 
 in this case, have not been less vigilant, but more vigilant, than the cred- 
 itor who has obtained a judgment ; I am at a loss to perceive what moral 
 principle it is, upon which those would proceed, who would set aside 
 conveyances and liens existing — who would disturb things as they find 
 them, merely because they give a preference — and subsUtute in their 
 room a preference, to which the only title, is vigilance. Yigilance is a 
 very good thing ; and if left to depend on that, preferences would not be 
 disturbed. But if they are to be disturbed, is vigilance the only moral 
 quality entitled to consideration ? Suppose the preferences complained
 
 *f^ 
 
 450] COLUMBIA, DECEMBER, 1836. 345 
 
 of, besides being founded on superior vigilance, and sound legal conside- 
 rations, rest on motives of generosity, humanity, gratitude, piety to 
 parents, parental or conjugal allectiou, shall these all go for nothint,^ '? 
 
 The plain truth seems to be, that it is impracticable as to the mass of 
 men, to put all creditors on a perfect ecpiality : and if it *\vas ])rac- ^^ . 
 ticable, injustice would often follow, 10 Mod. 459. Undoubtedly L 
 the power to prefer, may be perverted and abused, even where the abuse 
 discloses no fraud upon which a Court can seize: but "the power, as it 
 may be abused, so, on the other hand, may be very properly exercised." 
 The discretion must be left to the debtor, within the limits of fraud. 
 Society must depend for its indemnity upon the teachings of the debtor's 
 heart and conscience; upon those moral lights, which all men possess; 
 upon that native sense of justice ; upon those better feelings, which exert 
 a silent supremacy over even the worst of men. After all, most of the 
 great interests and operations of society, depend mainly upon these. 'J'he 
 law can only act in flagrant cases. 15 John. Rep. 571. 
 
 But, without protracting these observations, I found myself upon this: 
 that whatever may be thought of the morality or expediency of permit- 
 ting a debtor to grant preferences, his leiral right to do so is unquestion- 
 able. 2 P. W. 427; 10 Mod. 489; 5"t. R. 424; 8 T. R. 528; 3 
 John. Rep. 84. 
 
 Then, Ralph Johnson's assignment would not have been invalid, if he 
 had simply preferred his other creditors over the plaintitf. It would have 
 been clearly valid, if he had surrendered to the other creditors without 
 condition. I suppose it would have been equally valid, as against the 
 plaintiff, if in his surrender to them as privileged creditors he had re- 
 quired releases from them. Such a requisition, so far from being the sub- 
 ject of just complaint with the plaintiff, would have operated greatly to his 
 advantage, by freeing the debtor's after acquisitions from claiuis which 
 might otherwise have stood in the way of his obtaining satisfaction of 
 his debt. 
 
 Then, if it would have been no fraud on him to prefer others over him, 
 with or without conditions, is he defrauded by giving him an o|)portmiily 
 to participate with them ? — An opi)ortunity which it would not have 
 been fraudulent in Johnson to have withheld from him ? 
 
 If he refuses to accept the condition, he is only thereby, and that by 
 his own act, reduced to an uupreferred creditor. Not only is he left un- 
 injured, but, as I remarked before, he is positively benefitted by the con- 
 dition, although he has not accepted it : the acceptance of it by others, 
 having warded off competing claims from the debtor's after acquisitions. 
 
 I am uot aware of any decision in this State, which concludes any thing 
 on this point. Certaiidy it did not arise in the consideration *of r=(: i;x.) 
 Evans' assignment. 1 Hill C. R. 414. The authorities quoted L 
 against that assignment, consisted of cases in which del)tors had required 
 a release from their creditors. There was no such provision in Evans' 
 deed; and the Court took notice of the fact, that the cases quoted turned 
 upon the requirement of a release, for the pur[)Ose of showing that they 
 did not apply to that deed. The Court did not, as the occasitm did not 
 demand it, enter into an examination of the circuuistances under which, 
 in the cases quoted, the releases were exacted ; so as to determine 
 whether that simple requirement, without any other circumstauce, would
 
 346 SOUTH CAROLINA EQUITY REPORTS. [*452 
 
 invalidate an assignment. It pronounced no opinion respecting the 
 soundness or unsoundness of the decisions referred to. It merely pointed 
 out their inapplicability to the case on trial. 
 
 Nevertheless, the impression they left on me certainly was, that the mere 
 requiring a release would avoid an assignment : and such, I believe, was 
 the impression they ])roduced on the Court of Appeals. 
 
 But upon a careful examination of the cases I have mentioned, and 
 such others as are accessible to me, I have not found one wherein fraud 
 was inferred, merely from such requirement. I will first turn to the cases 
 referred to in Vavghan v. Evans, 1 Hill C. K. 420, for the purpose of 
 setting out more particularly than I did in the decision of that case, the 
 ])rovisions which the assignors coupled with the requisitions of a release, 
 in order to ena'ole them to drive their creditors to terms. 
 
 In Lord o. The Watchman, American Jurist, No. 16, p. 284, the 
 trustees were to sell the property, and after paying such creditors as 
 might accept upon the conditions required, 'pay over the surplus, (not- 
 withstanding there might be dissenting and unpaid creditors) to the as- 
 signor. 
 
 Hyslop V. Clark, 14 John. R. 4,59. The assignment contained a pro- 
 vision, that if any of the scheduled creditors should refuse to release, the 
 trust for paying them ratably should not he executed by the trustees ; 
 but instead thereof, in that event, the trustees should hold the assigned 
 property in trust, to pay Hyslop & Co. in the first place, and then such 
 oi\\QX cve^MoxB ?i'^ i\i% assignors should appoint ; and upon the further 
 trust, in any event, to pay the surplus (without regarding dissenting or 
 unpaid creditors) over to the assignors. 
 
 In Seaving v. Brinckerhoff, 5 John. Ch. Rep. 332, not only was the 
 assigned property bound by judgment and execution, but the assignment 
 ^,rq-i provided *that the trustee should sell the property, and "if the 
 -' creditors would not accept upon the condition imposed," Cthat of 
 releasing and receiving ratably,) "the moneys were to be held in trust 
 for the grantors." 
 
 Thus, it appears, that the debtors, unless the creditors would obey 
 their commands, secured to themselves, a right to have their property re- 
 duced to a new form intangible by their creditor's executions, and diffi- 
 cult of access by any process, and in this form re-delivered to themselves. 
 This right to a re-delivery was not a resulting trust merely ; but was se- 
 cured by express provision in the assignment : so that the trustees were 
 bound in strict compliance with their duty, and might have been com- 
 pelled to convert the property to money, and pay it over to the debtors ; 
 and nothing but arresting them, and declaring the assignment void, could 
 have prevented this. 
 
 This contrivance, this reservation of control over the property, this 
 putting it out of reach of the creditor's process, was held in t'rrorevi 
 over the creditor's heads, unless they would release ; and this constituted 
 the fraud which vitiated the assignments. The effort was to put the 
 property out of the reach of the law, and in the hands of trustees so con- 
 stituted as to be mere instruments in the hands of the debtor, and utterly 
 withhold it from the payment of debts, unless on the debtor's own terms. 
 It was not a fair surrender of the property, either with or without condi- 
 tions. A control over it was still reserved. It was not surrendered.
 
 *453] COLUMBIA, DECEMBER, 1836. 347 
 
 The laiicfuage was, " I will not surrender nnless you come to my terms ; 
 if you refuse, the property is soUl, and being out of your reach, I will 
 hold fast the avails, and defy the law." 
 
 In Austin v. Bell, 20 John. Rep. 442, 448, the deed of assignment re- 
 quired the trustee to pay back to the debtor the proportions of such 
 creditors as should refuse to release. Chief Justice Spencer insists on 
 the distinction between this provision and that contained in the deed, in 
 Murray v. Riggs, 2 John. Rep. 577, in which it was stipulated that the 
 shares of the dissenting creditors should be thrown into the general mass, 
 for the benefit of the accepting creditors. 15 John. Rep. 571. He 
 shows, by an examination of cases wherein assignments had been set 
 aside, that the vice lay not merely in requiring a release, but in putting 
 the assets in such shape as to be inaccessible to ordinary process; 20 
 John. Rep. 450, and then establishing, by the express terms of the trust, 
 such control over them, in the grantor, that he could make or withhold 
 payment, at *his pleasure, accordingly as his creditors should sub- r^i-i 
 mit to or reject the terms dictated by him. L 
 
 Our own insolVent debtor's Act of 1759, confirms me in the opinion 
 that, whatever the law may be elsewhere, in this State, at least, a debtor 
 may lawfully assign his whole estate for the benefit of such creditors as 
 will release him. 
 
 That Act, P. L. 247-8-9, after reciting among other things that "many 
 persons " (whom, so far from condemning, it pronounces to be " proper 
 objects of comptission ") " may be willing to satisfy their creditors to the 
 id most of their power,'''' provides, that if any person sued, impleaded or 
 arrested, "shall be minded to make surrender of all his effects, towards sat- 
 tisfiiction of the debts wherewith he stands charged, or in ivJiich he shall 
 be indebted to any persons ichatsoever," he may file a petition, accom- 
 panied with a schedule of his effects, in the Courts of law ; who shall, 
 thereupon, cause not only the suing creditors, but "all other the creditors 
 to whom he shall be indebted, to be summoned.'' On a day fixed, the 
 debtor is to take an oath, prescribed by ihe Act, that his schedule con- 
 tains a full account of his effects and credits, both at the time of filing 
 the petition and of taking the oath ; and that he has not, otherwise tlian 
 as mentioned in the schedule, assigned or disposed of any part thereof, 
 in such manner as thereby " to have or expect any benefit or profit to 
 himself, or to defraud any of his creditors." The Court, if "satisfied 
 with the truth of the oath taken " by the debtor, shall (after making cer- 
 tain reservations of property dictated by humanity) order the effects 
 specified in the schedule to be assigned by the debtor to persons to be 
 named by the Court ; which " assignment shall be in trust for the suit- 
 ors and such other creditors of the petitioner, as shall be willing to re- 
 ceive a dividend of his effects, and shall within twelve months from the 
 time the petition was filed, make their demands." 
 
 Now, for the effect of this. The Act gives it the operation of a 7t- 
 lease from all the accepting creditors. It provides that the debtor shall, 
 upon executing the assignment, and delivering his effects, so far as he has 
 power over them " be forthwith rf?'.s(7(«r;yeJ from such suits, and shall 
 also, thenceforth, be acquitted and dischai'gcd from all such other of his 
 creditors, as shall have received their dividends as aforesaid." 
 
 It does appear to me, that Ralph Johnson has acted in the very spirit
 
 348 SOUTH CAROLINA EQUITY REPORTS. [*454 
 
 of this statute. He has made the very assignment which it requires him 
 :^,rr-, *to malie ; and which, if executed under compulsory process, the 
 •iooj j^^^ declares, would have released him from all accepting, and 
 been valid against all dissenting creditors. 
 
 Snrely it cannot be a fraudulent evasion of the law to do voluntarily 
 what that same law would sanction if done under process. 
 
 It seems no answer to this, to insist that an insolvent, proceeding under 
 the Act assigns under strict scrutiny and under penalty of perjury. The 
 scrutiny is to ascertain whether the debtor's whole estate is included in 
 the assignment, and the perjury is in swearing falsely that it is. But the 
 bill admits that Johnson has assigned his whole estate ; thereby conced- 
 ing the truth of what the Act would have required him to swear ; and 
 rendering unnecessary any scrutiny whatever. If the bill had not done 
 this, then the plaintiff would not have stated a case rendering the aid of 
 this Court necessary to him ; inasmuch as, for aught that could be -known, 
 Johnson might still have had in hand enough property to satisfy his debt. 
 An argument was urged, that if no creditor, or but one creditor, hold- 
 ing an inconsiderable demand, had accepted under Johnson's deed, a trust 
 would have resulted to Johnson for the residue of the assigned property ; 
 that this would have given him a control over the fund, enabling him to 
 coerce the creditors into the execution of releases ; and that the deed 
 was, therefore, void for fraud at its execution ; and was not cured by the 
 subsequent acceptance of creditors to an amount sufficient to exhaust the 
 fund. 
 
 If the case put by the objection had actually occurred ; if after a full 
 surrender by Johnson of all his effects, a trust had resulted to him, and 
 had resulted merely in consequence of the non-acceptance of creditors, I 
 apprehend this would not have vitiated his assignment. (Prec. Ch. 605 ; 
 5 T. R. 420 ; 2 John. C. R. 579, 580.) The authorities draw a distinc- 
 tion between a resulting and an express trust to the assignor ; between 
 cases where the debtor has reserved a control, and given himself a prefer- 
 ence over the creditors, and thos* in which he has surrendered all, in terms 
 which give them a preference over him. If a trust result in the latter 
 case, the remedy of unpaid creditors is to be let in to an account of the 
 surplus in the trustee's hands 
 
 The existence of this distinction renders it unnecessary to inquire 
 *4.5rl ^'^6^h6r the acceptance or non-acceptance of the other creditors* 
 -' was not matter for their exclusive consideration, and not for the 
 consideration of the plaintiff. (2 Bin. 174, 182.) 
 
 It also renders it unnecessary to inquire whether the supposed defect 
 has not been cured. If it were not unnecessary to go into this inquiry, 
 the inclination of my mind is against the plaintiff The other creditors 
 have, by closing with the offers made them, made a case in which no over- 
 plus can result to the debtor's hands ; so that he has not any fund, by a 
 control of which he can dictate terms to the plaintiff. It would seem 
 unreasonable to say, that under these circumstances the plaintiff should 
 be allowed to resort, not to the actual case, but to one now altogether 
 supposititious and put beyond the range of possibility, and found a complaint 
 thereon ; especially since the entertaining that complaint can have no 
 other effect than to divest the other creditors of rights which it has been 
 shown, I think, they hold without fraud on him.
 
 ^456] 
 
 COLUMBIA, DECEMBER, 1S3G. 349 
 
 The only thing- remaining for consideration, is whether tlie sale miidc l)y 
 the assignors is valid. It appears that they called upon the creditors to 
 appoint an agent, under the Act of 1828 ; and that the creditors failed to 
 do so. (Acts 1828, p. 32.) The sale is therefore valid. Indeed, I did 
 not understand the plaintiff's counsel to contest the sale, but only the 
 validity of the assignment; professing a willingness, if the assignment 
 should be avoided, to take an account of the avails of the assigned 
 property in the trustees' hands. 
 
 Upon the whole, I feel bound, much against my first impressions, to 
 sustain the assignment. But as I conceive the plaintift" had strong grounds 
 to question its legality, each party will pay his own costs. 
 
 If the plaintiff chooses to have an account of any surplus which may 
 be left after paying the accepting creditors, the bill will be retained until 
 the next term, to give him an opportunity. It is decreed that it be dis- 
 missed, in all other respects ; and that each party pay bis own costs : 
 those of the trustees, to be allowed them out of the assigned fund. 
 
 On an appeal by the plaintiif from this decree, the question as to the 
 validity of the assignment, was argued at length by Wethers for the ap- 
 pellant. The Court concurring with the Chancellor, the decree was 
 affirmed. 
 
 * Chancellors De Saussure, Johnson and Harper, and Justices i-sh^cit 
 O'JSTeall, Evans, Earle and Butler, concurred. ^ 
 
 Gantt, J. I entertain serious doubts as to the correctness of the 
 principle established by this decree. Indeed I feel satisfied that it is in 
 violation of the constitution. 
 
 IIichardson, J., absent. 
 
 Hugh M'Mullin, Administrator of William M. M'Donald, v. John 
 Brown, and Others. 
 
 After the assent of the executor the title vests ia the legatee, and the property is not 
 lialile in his liands to executions subsequently obtained against the executor. («) 
 
 A decree against executors of an executor, is pruna facie evidence against the legatee 
 of the first testator on a bill to charge the legacy. (6) 
 
 The statute of limitations will not run so as to protect a legatee against his liability 
 for testator's debts, until after the remedy has been exhausted against the execu- 
 tor. — No cause of action accrued against him until then. [*461] 
 
 A creditor of the testator has the uncjuestionable right to pursue a legacy in the 
 hands of a legatee, after assets in executor's hands have in any way been exhaus- 
 ted. ' It might be different if he had stood by and saw the executor dissipating the 
 assets without making any effort to save himself. [*4G2] 
 
 Lands devised under a general residuary clause liable for debts before a specific 
 legacy. [*-4G2] 
 
 Plaintiff decreed to account for hire of negroes while in his possession. [*4G5] 
 
 The liability of a legatee for testator's debts extends only to the legacy iii specie, he 
 is not liable for hire. [*4f36] 
 
 If a creditor is guilty of neglect in prosecuting his demand against the executor, the 
 legatee will be protected by the statute of limitations. Ob. Dec. [*467] 
 
 (a) See Alexander vs. Williams, 1 Hill, 622. 
 
 (6) See Vernon & Co. vs. Valk & AVifc, ante, 257.
 
 350 SOUTH CAROLIXA EQUITY REPORTS. [*-l:57 
 
 Chester, 1835. — The following decree contains a full statement of tbe 
 case : 
 
 JoHNsox, J., (sitting as Chancellor.) The oliject of this bill is to 
 charge certain slaves, Dinah, Fann, Sara, Tulf, Jim, Ransom, Aggj and 
 Peggy, now in possession of defendant, IJrown, with the payment of about 
 $4000, remaining due on a decree obtained in the Court of Chancery l>y 
 the plaintiff, against John Dunovant and John Kidd, executors of ^lid- 
 dleton ]\l'Ponald, jr., who was executor of Middloton M'Donald, sen , to 
 the plaintiff's intestate, the said Middleton ^I'Donald, jr., having died 
 insolvent. 
 
 In support of this claim, it is stated in the plaintiff's bill that the 
 whole of the unadministered assets of the said Middleton M'Donald, sen., 
 in the hands of Dunovant and Kidd, had been sold by the sheriff under a 
 fi. fa., founded on the above mentioned decree, leaving the balance above 
 mentioned unsatisfied, and with respect to which the ^. /a. is returned 
 nulla bona ; but that Middleton M'Donald died seized and possessed of 
 a considerable real and personal estate, more than sufficient to pay all his 
 just debts, and that his executor, Middleton M'Donald, jr., instead of 
 retaining the same in his hands for that purpose, paid and delivered over 
 to the legatees of his said testator's v/ill, all such legacies as were therein 
 bequeathed to them, and suffered them to take into their possession such of 
 the real estate as was therein also devised to them, and otherwise disposed 
 of the real and personal estate of his said testator, without paying the 
 debt due to the plaintiff's intestate; and that amongst other things, he 
 delivered to the defendant. Brown, the negroes above mentioned, in pur- 
 suance of a bequest contained in the said last will and testament of the 
 5,, .rjj-] said *Middleton M'Donald, sen., to Tirza, the wife of the said 
 -■ John Brown, and constitutes the only property whereof the said 
 Middleton M'Donald, sen., died possessed, which remains within the juris- 
 diction of the Court, and can be rendered available to satisfy the plaintiff's 
 demand. The prayer of the biy, so far as it affects the defendant, Brown, 
 who is the only defendant interested in the present state of the case, is 
 that the negroes in his possession be decreed to be delivered up and sold 
 to satisl}^ the plaintiff's demand ; and if that should be insufficient, that 
 he should account for hire during the time he has had them in possession, 
 which is stated in the bill to have been since 1816 or 1817. 
 
 The answer of the defendant, Browm, admits that the negroes above 
 mentioned were specifically bequeathed to his said wife, Tirza, in the said 
 last will and testament of the said Middleton M'Donald, sen., and that 
 the said Middleton M'Donald, jr., the executor, assented to the said 
 legacy, and delivered the said negroes to him about the latter end of the 
 year, 1817, and that he has had possession of them ever since, and that 
 these facts were well known to the plaintiff. He also states, that the said 
 Middleton M'Donald, sen., died seized and possessed of considerable real 
 and personal estate, more than sufficient to pay all his just debts, exclu- 
 sive of the negroes specifically bequeathed to his wife, which were not 
 subject to pay the plaintiff's debt, until the whole of his estate not specifi- 
 cally devised, had been exhausted; and amongst other things, divers 
 valuable tracts of land, still remaining unsold and subject to the'plaintiff's 
 demand, in exoneration of the specific legacies, and to which plaintiff
 
 *45S] COLUMBIA, DECEMBER, 1836. 351 
 
 ouo-bt first to resort. He denies that the plaintiff's demand is jnst ; and 
 as he has not heretofore been a party to the proceedinjrs, nor had notice 
 to come in and defend his rights, he insists that ph^intitf is bonnd to make 
 strict proof of his demand. 
 
 The answer fnrtlier insists that tlie defendant is protected against this 
 demand by the statute of limitations, and relies on his possession of the 
 negroes since 1817, with the knowledge of plaintiff. In connection with 
 this question, it will be necessary to state more particularly the nature of 
 ]^laintift''s demand, and the circumstances attending its prosecution. 
 William M'Donald, who died in 1801, by his will bequeathed to his son, 
 "William M. ^I'Donald, a legacy consisting princijially of negroes, and 
 appointed Middleton M'Donald, sen., his executor. "\Villiara M. M'Donald 
 died *in 1813, under age and intestate, and administration of his r^jji-Q 
 estate was granted to plaintiff. In 181-4, plaintiff filed an original ^ 
 bill against Middleton M'Donald, jr., executor of ^liddleton M'Donald, 
 sen., for an account of the legacy as bequeathed to William M. M'Donald, 
 by bis father, William M'Donald, which was continued from time to time, 
 and divers references held until 1816, when it abated by the death of the 
 defendant, and was revived against Dunovant and Kidd, his executors, by 
 bill filed in 1819. This last bill was continued from time to time until 
 18'28, when a final decree was pronounced, and being unable, as before 
 stated, to obtain satisfaction of that decree, the plaintiff filed this bill 
 in 1829. 
 
 Supposing the plaintiff's claim to be established liy competent evidence, 
 and that there is no other i)roperty out of which it can be satisfied but 
 the legacy to Brown's wife, it will not be denied that the plaintiff has a 
 right to pursue it, unless he has lost it by negligence or lapse of time. 
 Conceding this, the questions raised in the defence are : 
 
 1. Whether the plaintiff*, supposing he has a right to pursue the pro- 
 perty in defendant's possession, had not an adequate remedy by levying 
 the execution on, and selling the negroes in the defendant's possession, 
 under the execution against Dunovant and Kidd, the executors of Mid- 
 dleton M'Donald, jr. 
 
 2 Whether the decree against Dunovant and Kidd. was competent 
 evidence against the defendant, of the demand against Middleton M'Don- 
 ald, sen. 
 
 3. Whether the plaintiff's rights against the defendant are not barred 
 by the statute of limitations. 
 
 4. The fact being stated in the bill, that there were sufficient assets to 
 pay all the debts, whether the defendant is bound to refund on account of 
 the devastations of the executor. 
 
 5 Whether in point of fact, there are other assets in the jurisdiction 
 of the Court, chargeable with the payment of this demand, in exoneration 
 of the specific legacy to the plaintiff's wife. 
 
 The position taken in the defence is very clearly untenable. In theory 
 of law, all the chattels of the testator vest in the executor, and his dispo- 
 sition of them is at law, binding on both creditors and legatees, whether 
 general or specific, so that the delivery of the legacy to defendant's wife, 
 and assenting thereto, vested the legal property in the defendant, of which 
 he co\dd not *be divested but by due course of law. There was 
 
 not, therefore, any property in Dunovant and Kidd, on which tlie 
 
 [*4G0
 
 352 SOUTH CAROLINA EQUITY REPORTS. [*460 
 
 execution against it could attach. The right to pursue it in the hands 
 of the defendant is a mere e(iuity, which the Court of Chancery alone has 
 the power of enforcing. 
 
 3. I am of opinion also, that the decree against Dunovant and Kidd 
 was at least i^rima facie evidence against the defendant, of the correct- 
 ness and amount of the demand against Middleton M'Donald, sen. 
 Judgments and decrees of Courts of competent jurisdiction directly on 
 the point in controversy, are admissible in evidence, not only between the 
 parties, but all persons standing in the relation of privies in blood, in 
 estate or in law. And I understand by the term privy, when applied to 
 a judgment or decree, one whose interest has been legally represented at 
 the trial. The heir, for example is privy in blood to the ancestor, and 
 consequently a judgment against the ancestor is evidence against the heir. 
 
 So, if several remainders be limited by the same deed, the remainders 
 are privies in estate to each other, and a verdict for one will be evidence 
 for the rest in remainder ; and privies iu law are such as derive their in- 
 terest through the parties. Starkie's Ev. pt. 2, p. 192-3-4. 
 
 In the case against Dunovant and Kidd, the point in issue was, whether 
 Middleton M'Donald, sen., was indebted to the plaintiff's intestate, and 
 how much ; and that is precisely one of the questions here — the right of 
 the plaintiifs to recover here, depends on that indebtedness. The ques- 
 tions are therefore the same. In the former suit, Dunovant and Kidd, as 
 the executors of Middleton M'Donald, jr., who was the executor of Mid- 
 dleton M'Donald, sen., were clothed with all the rights, and represented 
 the interest which had appertained to Middleton M'Donald, sen., and it is 
 from him that the defendant derives his right to the property constituting 
 the legacy bequeathed to his wife, and which is sought to be charged 
 with tiie payment of this debt His rights are subordinate to the rights 
 of the plaintiff as a creditor, and were therefore properly and legally rep- 
 resented on the former trial ; he is therefore a privy to that decree, and 
 is bound by it. I am not prepared to say, however, that the decree is 
 conclusive. Chancery would relieve unquestionably against the fraud 
 and combination of the creditor and the executor, and possibly against 
 the negligence of the executor, when the rights of the legatee had been 
 *4611 *ct)inpromised by it; but these questions do not arise out of the 
 -* case. 
 
 3. The statute of limitations does not in terms apply to demands that 
 are merely equitable, but the rule which it prescribes is adopted in chan- 
 cery, in cases that are analogous to those in whicii it applies at law. 
 Stackhouse v. Barnston, 10 Ves. 46r>_7 ; and in analogy to the rule at 
 law, I take it for granted that it will not run until a known cause of 
 action or suit has arisen. The principle of the statute will not apply to 
 those technical and continuing trusts which are alone cognizable in the 
 Court of Chancery, (Kane v. Bloodgood, 7 John. Ch. 90, Van Rhyn v. 
 Vincent, 1 M'C. Ch. 310,) until the trust is put an end to by the refusal 
 of the trustee to account, or by some other act by which he throws off 
 the character of trustee. (See Stark v. Stark, and Montgomery v. 
 Montgomery, decided in this Court.) But this is not one of those 
 technical continuing trusts, but one of those constructive trusts, implied 
 from the circumstance of the defendant having obtained possession of a 
 fund out of which the plaintiff was entitled to have his demand satisfied,
 
 *461] COLUMBIA, DECEMBER, 1836. 353 
 
 and with respect to wliicli tlie authorities all agree that tlie statute will 
 bar a recovery. I have before remarked, however, that tlie suitiite could 
 not operate before a cause or suit of action had arisen, and was known 
 to the plaintiff, and the question now is, when did the plaintiff's cause of 
 suit against the defendant arise, and when was it known to the ])l:dntiff. 
 
 Middleton M'Donald, jr., the executor, and after his death, Dunovant 
 and Kidd, his executors, were i)revionsly liable, and the defciulant only 
 in the event of plaintilT's being unable to recover payment from them. Both 
 bill and answer state, that over and above the specific legacy to defend- 
 ant's wife, there were abundant assets to pay all the debts of the testator ; 
 and one ground of the present defence is, that even now there are 
 sufficient assets to pay this decree, and until the plaintiff had ex- 
 hausted his remedy against them, he could not certainly know that the 
 assets would prove insufficient : and there is no evidence to show that 
 there was any reasonable ground to suppose that they would be in- 
 sufficient. It is said that defendant might have been joined in the bill 
 against Middleton M'Donald, jr., and against Dunovant and Kidd, and 
 the case of Trescot v. Trescot, 1 M'C. Ch. 432, sanctions that mode of 
 proceeding ; but even that case concedes, that according to the general 
 rule, the proceedings ought to be against the executor *only in the r:!c i/.^ 
 first instance, and that a departure from it is only justifiable when •- 
 it is known that the assets remaining in tlie hands of the executor are 
 insufficient. If, therefore, the plaintiff' had joined Brown in either of the 
 former bills, and it had turned out that the other assets were sufficient, 
 as to him, the bill would have been dismissed with costs. I think, there- 
 fore, that he was not bound to join the defendant, and having no certain 
 knowledge that the assets would prove insufficient, it cannot be said that 
 a known cause of action or suit had arisen, until the remedy against 
 Dunovant and Kidd was exhausted, and that the defendant is not pro- 
 tected by the statute. 
 
 There is a common sense view of this question, which is, in my judg- 
 ment, equally conclusive. The claim of the plaintiff, being founded on a 
 valuable consideration is more meritorious than that of defendant, which 
 is merely voluntary. The plaintiff has, for more than twenty years, pur- 
 sued his claims with unremitting diligence, precisely in the course pre- 
 scribed by the rules of law, and the practice of the Courts. He could 
 not know the necessity, nor had he the power of restraining the executor 
 in giving an illegal preference to the defendant, in assenting to and 
 delivering his legacy; and it is unjust and unreasonable that the defend- 
 ant should be entitled to avail himself of the advantage thus gained. 
 
 4. The cases of executors, Gregory v. Forrester, 1 M'C. Ch. 326, and 
 Trescot v. Trescot, lb. 431, are decisive on the question that the plain- 
 tiff has the right to pursue the legacy to defendant's wife, for the satisfac- 
 tion of the demand. If, after the legacy had been delivered to the 
 defendant,' the plaintiff had stood by and saw the executor dissipate the 
 assets of his testator, without making an effort to secure himself, equity 
 would not have relieved ; but so far from this, a suit was pending against 
 the executor at the time, and although it afterwards abated by his death, 
 it was revived with all possible despatch. 
 
 5. In the residuary clause of the last will and testament of Middleton 
 M'Donald, sen., he devised to his son, Middleton M'Donald, jr., his
 
 354 SOUTH CAROLINA EQUITY REPORTS. [*462 
 
 exector, alL his lands not before disposed of for life, remainder to his 
 eldest son ; and some evidence was given on the trial that two tracts of 
 land passed under this devise, amouuting in value to a sura much greater 
 than the plaintiff's demand; and unless these lands were disposed of in 
 the due couse of administration, being general and not specific legacies, 
 ^ , -, they were unquestionably* liable before the plaintiff could resort 
 -^ to the specific legacy to defendant's wife. The plaintiff's counsel 
 stated to the Court that he was able to prove that those lands had been 
 disposed of in due course of administration, but was not then prepared to 
 do so. The cause was heard at the last hour of the term, and when, in 
 truth, there was no time for the examination of the matter, and the cause 
 was left open by consent for further evidence on the point. Since that 
 time an execution has been put into my hands at the suit of Canty & 
 M'Rae v. Middleton M'Donald, jr., executor of Middleton M'Donald, 
 sen., from which it appears that a tract of land, containing 1,129 acres 
 had been sold to satisfy that and other executions, but I have no means 
 of ascertaining whether it is any part of the land devised by the residuary 
 bequest ; and from the hurry in which the case was tried, the circum- 
 stances have not been sufficiently developed to enable me to form a judg- 
 ment satisfactory to my own mind on this branch of the case, and have 
 therefore concluded to refer it to the Commissioner to collect farther evi- 
 dence on the matter. 
 
 In 1813, or thereabouts, the plaintiff, under some pretence of right in 
 himself, took possession of the negroes now in controversy, and retained 
 them until 1817, when they were recovered from him in an action at law, 
 by Middleton M'Donald, jr., as the executor of Middleton M'Donald, 
 sen., and the defendant insists, that if anything should be decreed against 
 him, the plaintiff is bound to account for or credit his demand with their 
 hire during the time he had them in his possession — but this cannot pre- 
 vail. In the action at law, which I understand was detinue, the plaintiff 
 was entitled to recover hire by way of damages for the detention, and I 
 presume did so. At any rate, the judgment is conclusive, and he is not 
 bound to account again for their hire. 
 
 In the event of the liability of defendant, and the sales of the negroes 
 proving insufficient to pay the balance due on the decree, it is insisted 
 for the plaintiff that defendant is bound to account for the hire of the 
 negroes during the whole time he has had them in his possession ; but 
 this cannot be allowed. The defendant's possession was legal and right- 
 ful, and in retaining possession of them, he withheld no right from the 
 plaintiff and did him no wrong, until the fact of the indebtedness of Middle- 
 ton M'Donald, sen., which was controverted, was judicially ascertained, 
 and until he had notice that a resort to this fund would be necessary to 
 ^ifiii satisfy *the demand. The rule is, that when one lies by and 
 -^ suffers another to enjoy property or funds as his own, under an 
 apparent bo72a fide title, which might have been brought into discussion, 
 he will be restricted in his demand for an account to the time of the 
 demand made, or to four years before filing the bill. Rowland i'. Best, 
 2 M'C. 320. And the circumstances of this case appear to me to justify 
 the application of the rule to its fullest extent. The plaintiff will there- 
 fore only be entitled to an account of hire from the filing of the bill. 
 
 It is therefore ordered and decreed, that it be referred to the Commis-
 
 *46i] COLUMBIA, DECEMBER, 183G. 355 
 
 sioiier to ascertain and report whether the testator, Middleton M 'Donald, 
 died seized of any lands and tenements, and if any, their value, and whether 
 they have been sold and dis}»osed of, and in what manner and by whom 
 and on what account. 
 
 To provide also for the event of the defendant's ultimate liability, it is 
 also ordered that defendant do account before the Commissioner for the 
 hire of the negroes mentioned in the bill, from the time of the (ilin"- of 
 the bill. ° 
 
 The defendant, John Brown, gave notice that he would move the 
 Court of Appeals to reverse the decree in the above case, upon the fol- 
 lowing grounds, to wit : 
 
 1. Because the decree against Dunovant and Kidd was not competent 
 evidence ag'ainst the defendant Brown, of the demand against Middleton 
 M'Donald, sen. 
 
 2. Because the plaintiff's rights against the defendant, Brown, were 
 barred by the statute of limitations. 
 
 3. Because the defendant, Brown, was not bound to refund on account 
 of the devastation of the executor, Middleton M'Donald, jr. 
 
 The defendant. Brown, also gives notice, that upon failing to have 
 the decree reversed, he will move to reform the same in the following 
 particulars : — 
 
 1. That the plaintiff's demand should be credited with the hire of the 
 negroes in his possession from 1813 to 1817, as well as the value and 
 hire of one other negro, bequeathed to the wife of the defendant, Brown, 
 in plaintift"'s possession from 1813 up to the present time. 
 
 2. That as the estate of Middleton M'Donald, sen., was more than 
 sufficient to pay all the debts, and as the other devisees and legatees have 
 received their portions thereof, defendant, Brown, *should not be r* </.= 
 charged with more than his wife's share or proportion of said debt. •- 
 
 3. That the defendant, Brown, should not be charged with negro hire. 
 
 Blanding, for the appellant, argued these grounds at length, and cited 
 Smith V. Groggins, 1 State Rep. 52 ; Chappell f. Brown, 1 Bailey, 530. 
 
 Clarke, contra. That the decree against Dunovant and Kidd, execu- 
 tors of Middleton M'Donald, jr., was competent evidence, and that lega- 
 cies in the hands of legatees were assets for the payment of debts after 
 exhausting those in the hands of the executor — cited Executors of Elliot 
 V. Drayton, 3 Eq. Rep. 29; 1 Yernon, 94; Screvin v. Bostick, 2 M'C. 
 Cii. 410; Milligan v. Milligan, 3 Cranch, 28. As to the statute of 
 limitations.— He insisted that there was no cause of action against de- 
 fendant until the remedy had been exhausted against the executors. 
 That the executor is a trustee as well for the creditors as the legatees, 
 and a legatee takes subject to the paramount equity of creditors — the 
 legatee is also in such case a trustee, and the statute will not run — Kane 
 V. Bloodgood, 1 John. Ch. Rep. 99; Drayton v. Drayton, 1 Eq. Rep. 
 559; High v. Dunwoodie, 2 Yes. 8t ; Irby v. M'Crae, 4 Eq. Rep. 422; 
 Saxon V. Barksdale, 4 Eq. Rep. 522 ; Hovenden u. Annesloy, 2 Sch. & 
 Lef. 638; Decouche v. Savetier 3 John. Ch. Rep. 2lT; Yan Rhyn u. 
 Yincent, 1 M'C. Ch. 310. 
 
 As to the liability of legacies after devastavit of executor — Lupton v.
 
 356 SOUTH CAROLINA EQUITY REPORTS. [*465 
 
 Lupton, 2 John. Ch. Rep. 614; Anonymous, 1 P. W. 495; Gregory v. 
 Forrester, 1 M'C. Ch. 325. 
 
 Johnson, Chancellor. The Court instruct me to say, that they concur 
 in the decree of the Circuit Court, except so far as it goes to discharge 
 the plaintiff from his liability for the hire of the negroes while in his 
 possession, from the time of the rendition of the verdict in the action of 
 detinue, at the suit of Middleton M'Donald, jr. against the plaintiff', until 
 they were delivered to the said Middleton M'Donald ; and so far as the 
 decree charges the defendant with the hire of the negroes in his posses- 
 sion from the time of filing the bill. On the first of these points, the 
 Court is of opinion that the plaintiff is bound to account for the hire 
 j^ -. *of the negroes during the time they remained in his possession 
 -J after the verdict; and in this opinion I entirely concur, and should 
 have so decided, if the fact that the negroes did remain in his possession, 
 had been brought before me on the Circuit. T do not know now how 
 the fact is, and the counsel differ about It : the truth will be ascertained 
 on a reference On the second point, the Court have instructed me to 
 say, that the liability of the defendant extends only to the legacy in specie 
 which he has received, and that he is not liable to account for the hire of 
 the negroes, even after the filing of the bill ; and in these respects the 
 decree of the Circuit Court must stand corrected and reformed. 
 
 On the argument of the cause here, the counsel have, for the purpose 
 of putting a final end to all litigation between the parties, conceded that 
 the defendant is in possession of another negro called Ben, part of the 
 legacy to his wife Tirza, under the will of Middleton M'Donald, sen. ; 
 and that the plaintiff is now, and has been for a long time in possession 
 of another negro called Mary, part of the said legacy ; and have consented 
 that the rights of the parties in these negroes should be adjusted in 
 this cause, although their names have been accidentally omitted in the 
 pleadings. 
 
 The negro, Ben, is certainly subject to the payment of the plaintiff's 
 demand, on the same principles that the other negroes of the legacy are 
 held to be so ; and the plaintiff is chargeable with the value and hire of 
 the negro, Mary, on the same principle that he is held liable for the hire 
 of the other slaves. 
 
 It is therefore ordered and decreed, that so much of the Circuit Court 
 decree as directs the defendant to account for the hire of the negroes in 
 his possession, be set aside and reversed ; and that the plaintiff do account 
 for the hire of the negroes mentioned in the bill, from the time of the 
 rendition of the verdict in the action at law against him at the suit of 
 Middleton M'Donald, jun., executor of Middleton M'Donald, sen., until 
 they were delivered to the said Middleton M'Donald, jun., or to some 
 one else authorized to receive them ; and that he do also account for the 
 value of the negro, Mary, and for her hire during the time he has had 
 her in possession, the amount thereof to be credited to the balance due 
 on his judgment against Dunovant and Kidd, executors of Middleton 
 M'Donald, jun. 
 
 *46'7l . *^^^ concurring in the decree of the Circuit Court on the ques- 
 tion arising out of the statute of limitations, the Court desire not 
 to be understood as laying down the rule broadly, that a legatee will in 
 
 1
 
 *467] COLUMBIA, DECEMBER, 1836. 357 
 
 no case be protected by the statute against the claims of the creditors of 
 the testator; on the contrary, it is thought, that if tlie creditor is guilty 
 of neglect in the prosecution of his demand against the executor, the. 
 legatee would be protected by the principle, if not the letter, of the 
 statute. 
 
 Chancellors De Saussure and Harper, and Justices O'Neall, Rich- 
 ardson, Evans, and Butler, concurred. 
 
 Chancellor Johnston having been of counsel in the case, gave no 
 opinion. 
 
 John Robinson, and Others, v. ISTathaniel Gist, Administrator of 
 
 Hiram Coleman. 
 
 Where an administrator rendered an erroneous statement of assets, and paid the 
 creditors their proportion thereof, and took their assignments for the balance : — 
 Held, that he should not be permitted to retain to his own use the funds afterwards 
 collected. As a trustee, he cannot make profit to himself of the trust estate. — 
 Assignments set aside, errors corrected, and administrator ordered to account. 
 [*467] 
 
 Union, Special Term, September, 1835. 
 
 O'Neall, J., (sitting as Chancellor.) The plaintiffs are creditors of 
 the late Hirara Coleman, of vs^hom the defendant is the administrator. 
 
 In 1828, three years after the death of his intestate, the defendant 
 exhibited to the plaintiffs a statement of the Ordinary, by which it appears 
 that after paying preferred debts, the defendant had in his hands only 
 $1895 04 of available assets, for the payment of their debts. Of this 
 sura he paid to them their proportions, and took their receipts for the 
 same, with an authority to himself to receive, to his own use, any further 
 suras applicable to the said debts which he might be able afterwards to 
 collect from the assets of his intestate. 
 
 It appears, on looking into the accounts made up by the Ordinary, 
 and on which his statement was predicated, that they were erroneously 
 made up, in allowing defendant commissions on paying a very large debt 
 due by his intestate to himself; and in computing interest on the amount of 
 that debt, from 1825 to 1828, and not applying annually to its extinguish- 
 ment the annual balances in the hands of the defendant since 1828. 
 
 The defendant has collected and received of the doubtful assets r*^gg 
 of his intestate, $1410 47, which he now contends, under the set- L 
 tleraent and the receipts of the. plaintiffs, he is entitled to retain to his 
 own use. 
 
 There can be no doubt that the plaintiffs accepted of the sums paid 
 them by the defendant, under the belief that the Ordinary's statement of 
 the account was correct. When this is shown to have been incorrect, it 
 follows that this was such a mistake in fact, as would have made that 
 settlement not binding on the plaintiffs. 
 
 But, independent of this, the defendant cannot be allowed to set up 
 these receipts as a purchase or gratuity from the plaintiffs or their 
 YoL. 1—46
 
 358 SOUTH CAROLINA EQUITY REPORTS. [*468 
 
 interests as creditors in Hiram Coleman's estate. The defendant was 
 tlieir trustee, and he cannot be allowed to speculate upon his cestui que 
 trusts. It is a settled rule that he shall not make profit out of his trust. 
 For collecting the funds, which was a duty imposed on him by law, he 
 would claim that they should become his own. It is true that the plain- 
 tiffs assented to this in 1828 ; but it is equally true that they now object to 
 it, and the defendant has not even the pretext of a consideration on which 
 he can claim to hold, for his own use, their dividends of the funds in his 
 hands. It cannot therefore be allowed that he should be regarded as 
 the assignee of the plaintiffs. 
 
 But, if there had been an assignment on some slight consideration, I 
 should hold the relation of confidence between the defendant and plain- 
 tiffs, would render it invalid. 
 
 It is ordered and decreed that the defendant do deposit with the Com- 
 missioner, the evidence of his intestate's indebtedness to the plauitiffs — 
 that the Commissioner do report the balances due to the plaintiffs, after 
 deducting the payments made by the defendant in 1828 — that he do also 
 advertise in the papers published in Charleston and Columbia, for three 
 months, for the other creditors of Hiram Coleman to present sworn state- 
 ments of their debts to him on or before the 15th of February next ; and 
 that he do examine and report the amounts due to them, together with 
 the amounts due to the plaintiffs, to the next Court of Equity for Union 
 District. 
 
 It is also ordered that the Commissioner do charge the defendant, in 
 his account on Hiram Coleman's estate, with the amount retained by him 
 as commissions for paying his intestate's debt to himself, and the interest 
 thereon. 
 
 *4.rql "^^^ ^^ ^^^^ ordered that he do correct the defendant's accounts 
 -• made up by and before the Ordinary, Rice, by applying the annual 
 balances in the hands of the defendant, from 1825 to 1828, to the pay- 
 ment of his intestate's debt to himself, and that the amount of the differ- 
 ence between his debt thus ascertained and paid, and as it was allowed 
 by the former Ordinary, Rice, be charged with interest, to the defendant. 
 
 It is also ordered that the defendant do account for the assets of his 
 intestate, collected since 1828, with interest thereon. 
 
 The defendant contends, that in making these last collections, he has 
 l)een put te extraordinary trouble, and has claimed compensation beyond 
 the regular commissions. 
 
 It is therefore ordered that an issue be forthwith made up and tried at 
 the ensuing term of the Court of Common Pleas for Union District, to 
 ascertain whether the defendant is or is not entitled to compensation 
 beyond the commissions of two and a half per cent, for receiving, and 
 two and a half per cent, for paying out the assets of his intestate ; and if 
 this issue be found for him, then that commissions of two and a half per 
 cent, for receiving, and two and a half per cent, for paying out the assets 
 since 1828, and such extra compensation, be deducted from the amount 
 decided to be charged against him ; if not, that the commissions of two 
 and a half per cent, for receiving, and two and a half per cent, for paying 
 out, be alone allowed ; and that the balance found to be due by the 
 defendant, as administrator of Hiram Coleman, be apportioned by the
 
 *469] COLUMBIA, DECEMBER, 1S36. 359 
 
 Commissioner, among the plaintiffs and the other creditors of Iliram 
 Coleman. Let the defendant pay the costs of this suit. 
 
 Thomson and Dawkins, for appellant. 
 
 Herndon, contra. 
 
 O'Neall, J. This Court instruct me to say, that they are satisfied 
 with the decree of the Judge, who sat for the Chancellor in this case. It 
 is necessary barely to remark, that one of the grounds of appeal is 
 founded in error. There is no limitation in the decree, such as the 
 ground supposes, preventing the jury who may try the issue from allowing 
 live per cent, on the whole estate, if, under the instructions of the law 
 Judge, they should think the ^defendant entitled, on the facts, to r^^*jr. 
 so much extra compensation. The Circuit decree is therefore '- 
 affirmed. 
 
 Chancellors De Saussure, Johnson, Harper and Johnston, and 
 Justices Gantt, Richardson, Evans and Butler, concurred. 
 
 James Pickett, v. James B. Pickett, and Others. 
 
 Sberiif's sale to defendant set aside, ■where the defendant, witli a knowledge that tlie 
 sheriff had agreed to postpone the sale, urged him to sell when the croAvd had dis- 
 persed, and then purchased himself at a great sacrifice. [*471] 
 
 Defendant assisted a debtor to remove his property out of the State, witli the view 
 to defeat liens existing here against it, and to obtain priority for himself in 
 another State: Jleld, that this was such a fraud as will deprive him of his prior- 
 ity in the foreigp jurisdiction ; and he was ordered to account here, for the funds 
 received there. [*471] 
 
 On a bill filed by one judgment creditor against another to set aside a sheriff's sale of 
 debtor's property as fraudulent, and to recover funds which defendant had fraud- 
 ulently obtained, it was held by a majority of the Court, that the defendant could 
 not avail himself of usury in the original cause of action on which the plaiu- 
 tifl:"'s judgment was founded. Ch. Harper, and Js. Gantt and O'Neall, dissenting. 
 [*473] 
 
 Fairfield, July, 1835. 
 
 The following is the brief of the appellant's counsel : — 
 The bill in this case was filed by the plaintiff, as a judgment creditor 
 of Reuben Pickett, Robert L. Knox and Susannah Pickett, against the 
 defendants, on the 1st of February, 1832. — 1. To set aside the sale of 
 three tracts of land, situate on Wateree Creek, in Fairfield ; one belong- 
 ing to the said Reuben Pickett, another to the said Robert L. Knox, 
 and the third to the said Susannah Pickett, and which defendant, Pickett, 
 purchased at the sheriff's sale on the 8th April, 1828, on the ground of 
 alleged fraud and imposition in effecting a levy and sale of said lands, 
 and the inadequacy of price : 2. To set aside two judgments in favor of 
 said James B. Pickett ; one for $3000, against Robert L. Knox, Reuben 
 Pickett and Susannah Pickett, and the other for $2293 53, against 
 Robert L. Knox and Susannah Pickett, both confessed on the 8th of 
 April, 1828, on the ground of alleged fraud in obtaining said judgments,
 
 380 SOUTH CAROLINA EQUITY REPORTS. [*'i70 
 
 with a view to deprive plaintiff of the means of obtaining satisfaction of 
 his judgment : 3. To set aside the sales of certain negro slaves alleged to 
 have been the property of the said Reuben Pickett, llobert L. Knox and 
 Susannah Pickett, made by the sheriffs of Lancaster and Fairfield, and 
 purchased by defendant, Pickett, and his agent, on the ground of alleged 
 fraud and imposition on the part of said defendant, in procuring a levy 
 of said negroes and a sale of them at an under value : 4. To compel said 
 defendant to account for the value of certain negro slaves and other pro- 
 perty, which the said Reuben Pickett carried from the State of South 
 Carolina to Mississippi or Louisiana, on the ground that defendant, 
 ^ ,^,-| Pickett, *aided said Reuben Pickett in carrying off said property, 
 -^ with a view to defraud plaintiff. 
 
 The defeudant, in his answer, denies all the allegations of fraud. 
 
 The Reporter has no statement of the evidence. The leading facts, 
 however, are stated in the following decree : — 
 
 Johnston, Chancellor. The testimony respecting the sale of the 
 Wateree lands, leave no doubt of the invalidity of that sale. The sheriff 
 announced that his sales were over, and thereby dispersed the crowd, 
 among whom was a man of substance who attended to bid, and who only 
 left the ground in consequence of the sheriff's public declaration that he 
 had closed his sales. The defendant, Pickett, with a full knowledge that 
 the sheriff had put off his sales, and that the crowd had dispersed, as- 
 sisted in urging on the sales after a considerable lapse of time, and within 
 a very few minutes before the expiration of the selling hours, when few 
 persons were present, and no time was left for them to collect, and bought 
 at an enormous sacrifice. 
 
 Now, if he had not urged the sale, (which he does not deny — his de- 
 nial is that he delayed it,) if he had not urged it, but as a mere spectator 
 had seen the sheriff" first openly declare the sales over, and then at a late 
 hour, in the presence of a very few persons, all the rest having gone off 
 in consequence of the sheriff's declaration, put up the land, could he con- 
 scientiously assist the sheriff in such a fraud by purchasing from him ? 
 But the evidence is that he drove the sheriff to it. 
 
 With respect to the sales of the slaves, there is something suspicious ; 
 but not enough to set them aside. The prices of those sold at Lancaster 
 must be placed to the credit of the executions, according to their pri- 
 ority. 
 
 It appears to me unsafe, upon the evidence offered, to pronounce the 
 judgments held by the defendant, James B. Pickett, which are impugned, 
 fraudulent. 
 
 The testimony, (the weight of it,) I think, goes to establish that de- 
 fendant, Pickett, did assist Reuben Pickett in carrying his slaves and 
 other personal property, beyond the reach of the liens which bound them 
 
 *4721 ^^^"^"^ ' ^^^^ ^^^^ ^^^^ ^ ^^*^^^' ^^ defeat those *liens. This I take to 
 "-' be such a fraud as will deprive him of the priority he obtained in 
 payment in the foreign jurisdiction to which he aided in carrying the 
 property. He must therefore account for what he received in Louisiana, 
 and apply it to the executions here, according to their rank. 
 
 It is decreed that the sales of the "Wateree land be set aside ; and that 
 the Commissioner do (after duly advertising) proceed to sell the same for
 
 *472] COLUMBIA, DECEMBER, 1836. 361 
 
 cash, on the first convenient sale day ; and that he do liold a reference 
 and state the accounts accordhig to the foregoing- opinion, to sliow how 
 the sums received in Louisiana, the funds of the Lancaster sale, and the" 
 proceeds of the re-sale of the land, shall be applied. James B. Pickett 
 to pay the costs. 
 
 Defendant, Pickett, moved to reverse the decree of the Chancellor, on 
 the following points : — 
 
 1. Because there was no sufficient ground for setting aside the sale of 
 the Wateree land. A sale by the sheriff cannot be set aside for inad- 
 equacy of price ; and if there was any misconduct in offering the land for 
 sale at the time it was offered and sold, it was the misconduct of the 
 sheriff alone, and for which defendant ought not to be answerable. 
 
 2. Because it appearing, from the investigation of the case, that the 
 negroes sold at Lancaster Court House did not belong to Reuben Pickett, 
 for whose debt they were sold, but to another person ; and the same 
 having been returned by the defendant, Pickett, to the rightful owner, 
 none of the judgments against Keuben Pickett should be credited with 
 the sum which said negroes brought at said sale. 
 
 3. Because Reuben Pickett, having died in the State of Louisiana, 
 (the place of his domicil,) his property in that State was subject to the 
 laws of Louisiana, where alone it could be legally administered ; and the 
 defendant, Pickett, had a right to avail himself of the opportunity of ob- 
 taining payment of his just demands against the estate of said Reuben 
 Pickett, in conformity to the laws of the State ; and he ought not to be 
 deprived of the priority of payment given by the foreign jurisdiction ; 
 more especially in favor of plaintiff's demand, which was clearly proved 
 to be usurious. 
 
 4. Because plaintiff's demand was clearly proved to be usurious and 
 fraudulent, and therefore he was not entitled to the aid *of a 
 Court of Equity for the purpose of giving him the priority in 
 payment of such a demand. 
 
 Clarke and MWowell, for the appellant. 
 
 Li July, 1836, the Court of Appeals made the following decree : — 
 It is ordered and decreed, that the decree of the Chancellor be af- 
 firmed, so far as respects the setting aside of the sale of the land made 
 by the sheriff of Fairfield District to the defendant, James B. Pickett, as 
 the property of the deceased, Reuben Pickett ; and that the land be re- 
 sold in pursuance of the decree. 
 
 Chancellors Johnson and Harper, and Justices O'Neall, Gantt, 
 Richardson, Evans, Earle and Butler, concurring. 
 
 At this term, Chancellor Johnston delivered the following opinion : 
 The majority of the Court is satisfied with so much of the circuit de- 
 cree as concludes from the evidence, that James B. Pickett assisted Reu- 
 ben Pickett to carry his personal property beyond the operation of the 
 plaintiff's lien, for the purpose of defeating it and obtaining a preference 
 on it ; and entertain no doubt that this conduct was a fraud against which 
 the plaintiff is entitled to relief 
 
 There is another point, however, of some difficulty. TIic answer of 
 James B. Pickett charges that the plaintiff's judgment is founded on a 
 
 [*47 
 
 o
 
 362 SOUTH CAROLIJv^V EQUITY REPORTS. [*473 
 
 usurious contract ; and (without offering to pay the principal and inter- 
 est actually dne) insists that the usury deprives the plaintiff of all right 
 to the relief he seeks. 
 
 This ])oint has occasioned much hesitation here. My firm conviction, 
 after mature reflection, is that the objection is flagrantly against principle, 
 and but indifferently supported by authority : and I shall now proceed to 
 give the grounds of this opinion. 
 
 In 1 Fonblanque, 25, the general principle is laid down, that if one 
 come into equity to have an instrument given on an usurious considera- 
 tion cancelled, he will be relieved only on terms of his paying what is 
 bo7ia fide due ; and if his bill does not contain an offer to do this, a de- 
 murrer will lie to it. But if the party claiming under such instrument 
 comes into equity to set it up, the Court will resort to the letter of the 
 statute, which condemns this contract. 
 
 In Fitzroy v. Gwillim, 1 T. R. 153, the plaintiff had pawned goods on 
 an usurious contract ; and without paying principal and lawful interest, 
 ^ ^ -, brought trover for the goods. Per Lord Mansfield, *Ch. J. "A 
 -i lender upon an usurious contract is precluded from recovering 
 any thing on that contract ; but if the borrower seeks relief, he must first 
 do what is right between the parties. Here the plaintiff did not tender 
 what had been actually advanced. " 
 
 Mason V. Gardiner, 4 Br. Ch. Rep. 436, was a bill to have a bond in- 
 fected with usury delivered up. A demurrer was sustained because the 
 borrower made no tender of the real debt. 
 
 Rogers v. Rathbun, 1 John. Ch. Rep. 367, was a bill to enjoin a suit 
 then pending, on the ground that the suit was on an usurious contract. 
 The injunction was denied because the bill did not offer to pay the sum 
 actually due. 
 
 In Scott V. Nesbit, 2 Br. Ch. Rep. 641, (S. C. 2 Cox Ch. Rep. 183,) 
 the bill was by Mrs. Scott, against the executors of her debtor for an 
 account of assets, and another creditor came before the master and proved 
 a judgment debt, which the plaintiff objected to on the score of usury. 
 The objection was overruled because the judgment was not examinable, 
 (2 Cox 184) ; the Lord Chancellor ^^Thurlow) at the same time observ- 
 ing, that if this were not so, still the plaintiff was not entitled to object, 
 inasmuch as she had not offered to pay the sum really due on the usurious 
 contract. I shall have occasion to recur to this case. 
 
 These authorities sufiiciently support the doctrine laid down by, Fon- 
 blanque. They establish this, and no more — that while the contract re- 
 mains in pais, not having passed into judgment, it is examinable. That 
 if suit is l)rought to obtain a judgment on it, or, as Ch. J. Kent ex- 
 presses it, in Jackson v. King, 10 John. Rep. 195, if the suit is upon 
 the very instrument itself, no recovery can be had. That if, on the other 
 hand, relief is sought against it, this will be granted only on equitable 
 terras. If the lender is the actor, he will be turned out of Court : if the 
 borrower is the actor, he also will be turned out, unless he will do equity. 
 
 But no case can Ije found, it is believed, where the borrower has been 
 relieved, or the lender ejected from the forum, when judgment has been 
 obtained on the contract, except when the proceeding is in bankruptcy, 
 pr when the judgment has been obtained by fraud, or, perhaps, when the 
 judgment was a constituent part of the usurious agreement itself.
 
 I 
 
 4 
 
 *474] COLUMBIA, DECEMBER, 1836. 363 
 
 In bankruptcy the rule is peculiar. No part of the debt is allowed, 
 whatever be the form of the security. That never was the rule iu equity. 
 9 Yes. 84. 
 
 *When the judgment has been obtained by fraud, it will be r^,^^ 
 set aside, on account of the fraud, not on account of the uaury. L ^'^ 
 — Thompson D. Berry and Van Buren, 3 John. Ch. Rep. 395, is very 
 much to the point. That was a bill by the borrower to be relieved of 
 the usuary contained in two judgments : one held l)y each of the de- 
 fendants. There was no doubt of the usury in both instances. Yau 
 Buren's judgment was allowed to stand as a conclusive protection of the 
 contract behind it, because obtained fairly ; but that of Berry was set 
 aside because obtained by fraud ; and the contract itself was thus 
 exposed to examination. 
 
 On what principle was Yan Buren's judgment allowed to stand but 
 this — that all objections to the contract were closed by the judgment, 
 and that the usury was res judicata ? 
 
 On what principle was Berry's judgment denied to be decisive on the 
 usury, as res judicata, but that the borrower had been shut out of his 
 defence by fraud ? 
 
 With respect to judgments taken as part of the usurious agreement 
 itself, it might be conceded that they cannot stand : but this concession 
 would not affect the position I have taken. Such judgments might be 
 viewed as mere stipulations inserted in the usurious contract, to waive 
 the benefit of the law. This is the light in which a case might be 
 viewed, when, contemporaneously with the usurious agreement and as 
 part of it, a warrant of attorney was given by the borrower to enter up a 
 judgment ; or when the loan was made on a confession of judgment for 
 the usury. 
 
 That a judgment fairly obtained upon a usurious contract is conclusive, 
 has been .repeatedly held in this State. As, for instance, in Fowler v. 
 Stewart, where the suit was on a judgment which had been rendered on 
 usurious notes. The defendant was not allowed to go behind the judg- 
 ment and examine the contract on which it was founded. Numberless 
 cases of a similar character have occurred where a like decision was 
 made. See also 1 Murphy, 225, Branton v. Dixon. 
 
 The case I have referred to, show that when relief has been refused to 
 the lender, or granted to the borrower, the usurious contract had never 
 passed into judgment, except in bankruptcy ; or when the judgment was 
 unfairly obtained, or was itself the usurious security. 
 
 To allow the borrower to neglect his defence at law, and then make 
 his omission the ground of application of this Court, would *be p^^rg 
 no better than a permission for laches. It would give him choice L 
 of jurisdictions — authorize him to fold his arms when the law gave him 
 ample remedy, and when the death of witnesses or other accident had 
 deprived his creditor of power to disprove his allegation of usury, come 
 into this Court and obtain an advantage, to which, perhaps, by. the real 
 facts of the case he is not entitled. But such neglect is not favored in 
 this Court ; the settled doctrine of which is truly stated by Lord Eldon, 
 in Ware v. Horwood, 14 Yes. 31, to be, "that the omission to take 
 advantage of the usury, at law, is no ground for relief in Equity." If the 
 borrower, when sued upon the judgment rendered on the usurious con-
 
 364 SOUTH CAROLINA EQUITY REPORTS. [*476 
 
 tract, may raise the objection wliicb he neglected when the judgment was 
 obtained, what is this but to give him two opportunities to try the same 
 question ? Maxwell v. Connor, 1 Hill's Ch. Rep. 14. What would this 
 be, but to prostrate the whole doctrine of res judicata, and open the 
 way to endless litigation ? 
 
 One of James B. Pickett's judgments against Reuben Pickett, is 
 junior to that of the plaintiff. 
 
 It is not doubted by any one that the plaintiff's judgment is conclusive 
 on Pv,euben Pickett. The true question, then, is, whether Reuben 
 Pickett's junior creditor can take an advantage to which it is conceded 
 Reuben himself is not entitled. I think the junior creditor has no better 
 right than his debtor, and that whatever binds the latter, binds the 
 former, unless when the former is defrauded. 
 
 Was it ever heard of, that a creditor wTio had proved his demand and 
 obtained judgment on it against his debtor, was obliged to prove^it over 
 again when the contest was between himself and another creditor ? 
 Unless obtained by fraud and collusion between him and the debtor, it is 
 conclusive on all others. 
 
 If instead of James B. Pickett's fraudulently obtaining possession of the 
 avails of Reuben's property, the sheriff had sold that property and the 
 avails were now in his hands, can any man be found to contend for a 
 proposition so absurd, as that James B. could question the plaintiff's 
 right to draw from the sheriff the amount of his judgment ? And shall 
 this defendant keep money to which he is not entitled, merely because he 
 has got it by unfair means ? Shall he be permitted to change the 
 unquestionable rights of the parties, by fraud ? and because that fraud 
 renders it necessary to the plaintiff to come here to restore things to that 
 ^ ,Kr.-] *posture in which the law had placed them, take advantage of his 
 -' own wrong ? 
 
 It is a great misconception to suppose the plaintiff came here to set 
 up the usurious contract. He had already recovered on that, and 
 obtained a lien on his debtor's property. The law gave him that lien. 
 He has been deprived of it by fraud ; and he comes here to undo that 
 fraud. That is his only purpose : he asks no more. 
 
 He does not come here to sue on his contract ; but to insist on his 
 judgment lien. The contract lies behind the judgment, and can never 
 be assailed until the judgment has been set aside. 
 
 It has been argued that Scott v. Nesbitt, 2 Bro. Ch. Rep. 641, one 
 of the cases I have mentioned, authorizes James B. to assail the plain- 
 tiff's judgment. 
 
 That case, is reported twice, (2 Cox's Ch. Rep. 183.) The case is 
 stated, and the argument and the summary of the Chancellor's judgment 
 given by Brown. The judgment of the Chancellor is more fully reported 
 by Cox. 
 
 The case is briefly this : Mrs. Scott brought her bill to have an account 
 of assets from the defendants, who were the executors of her debtor. 
 The case was referred, with leave to other creditors to prove their 
 demands before the master. Among the demands presented, was a 
 judgment obtained by the executors of the Countess of Macclesfield 
 against the defendants, on an usurious bond given by their testator. 
 Mrs. Scott objected to this judgment for usury, and the master rejected
 
 *477] COLUMBIA, DECEMBER, 1836. 365 
 
 it. On appeal to the Lord Chancellor, (Thurlow,) lie alloioed the judg- 
 ment to stand, and that for the fall amount. The objection to the 
 judgment was, that there was no judgment in the life of the testator — . 
 that at his death the matter rested in contract infected with usury, and 
 that a judgment, obtained against the obligor's executors, gave no 
 preference over fair creditors. That the latter were at liberty to take 
 things as they stood at the debtor's death, and insist on the usury. 
 Lord Thurlow's judgment on this point was, that " This judgment, if 
 fairly obtained before the decree here, gained a priority, as if (jained in 
 the testator'' s life ii7ne." 
 
 What was this but to concede, in the fullest terras, that if the testator 
 had been alive, the judgment would have bound both him and the junior 
 creditor ? 
 
 The master's decision was reversed, and the judgment stood for the 
 full amount. 
 
 *It is true, the Lord Chancellor did say, that, " at any rate" — r*^^*^ 
 that is, whether the junior creditor was bound by the judgment or '- 
 not, she could not object to the usury, inasmuch as she had not offered to 
 pay what was really due. But this was evidently by way of offering an 
 additional reason for his judgment. 
 
 That my construction of this case is not singular or unfounded, appears 
 by what Lord Eldon says of it, in Ware v. Horwood, 14 Yes. 31. He 
 states his understanding thus : " In Scott v. Nesbit, the master having 
 disallowed a debt on the ground of usury, Lord Thurlow aUoiced the 
 debt to stand.'' For what reason ? IS'ot because the junior creditor had 
 not tendered principal and interest, but — " holding that the omission to 
 take advantage of the usury at laiv, ivas no ground for relief in 
 Equity. " 
 
 Chancellor Kent quotes the case in French v. Shotwell, 5 John. Ch, 
 Rep. 565, with the same understanding of it. 
 
 Having mentioned the very instructive case of French v. Shotwell, I 
 must say, that in my judgement, one more conclusive on every position I 
 have taken, cannot be required. The plaintiffs, who were ])urchasers of 
 lands bound by a judgment founded on usurious bonds, filed their bill to 
 have the lands exonerated from the judgment. Chancellor Kent, after 
 showing that Ten Broeck, the vendor of the land, was concluded by the 
 judgment, goes on to show by the clearest reasoning, that subsequent 
 purchasers under him, with notice of the judgment (not of the usury,) 
 could not impeach the judgment, or assume a remedy which he had 
 neglected. He insists[that the entering up of the judgment was notice of 
 the lien to all subsequent purchasers : and observes, that " He who con- 
 fesses a judgment, or suffers it to pass by default, is concluded from de- 
 fence, according to the general language of the cases. And if the party 
 himself, who is the victim of the fraud, or usury, chooses to waive his 
 remedy and release the other party, it does not belong to a subsequent 
 purchaser under him, to recall and assume the remedy under him. If a 
 judgment was fraudulent by collusion between the parties to it on pur- 
 pose to defraud a subsequent purchaser, the case would present a very 
 distinct question. But if the judgment was fraudulent only as betAveeu 
 the parties, it is for the injured party alone to apply the remedy. If he 
 chooses to waive it and discharge the other party, it cannot consist in
 
 366 SOUTH CAROLINA EQUITY REPORTS. [*478 
 
 justice, or sound policy, that a subsequeut voluntary purchaser, knoicing 
 
 *i*7Ql o/^^'«^y"'^^'"''"'> should *be competent to investigate the merits 
 
 -■ of the original transaction as between the original parties." 
 
 What can be more conclusive than this view ? It shows clearlj^ I think, 
 that persons claiming through a debtor, cannot object to a senior claim 
 on that debtor, unless defrauded hy it ; that such persons cannot object 
 to usury as usury, but as fraud. That when they purchase from or 
 credit the borrower, with notice of his prior obligations, they are bound 
 by them, because not defrauded by them. 
 
 In Moffet V. Cochran, 1 M'C. Ch. Rep. 441, the same view was 
 taken by ray brother Johnson in delivering the opinion of the Court. 
 In this case, by the way, the usurious instruments objected to by the 
 other creditors had not passed into judgment. 
 
 A similar view was taken in Smith v. Fisher, 2 De Saussure's Rep. 215. 
 A junior creditor filed his bill against a senior creditor, whose demand 
 had not passed into judgment, for a discovery whether the senior demand 
 was not usurious, and to be relieved against it. The Court sustained a 
 demurrer on the ground that the bill charged usury only, and not fraud. 
 Is not this case completely decisive of the one before the Court ? 
 
 It seems to be somehow conceived, that the allowing the plaintiflF's 
 lien a preference over James B. Pickett's, would defraud the latter, 
 merely becauseit would diminish the fund out of which he is to be paid. 
 
 If loss occasioned in this way constitutes a fraud on a junior creditor, 
 how could the decisions in Smith v. Fisher, and Moffet v. Cochran, have 
 been made ? They appear to conclude tlie very point. 
 
 If the sheriff had sold the debtor's property, and held the avails, the 
 plaintiff could have drawn the amount of his debt. It will not be con- 
 tended that that would have defrauded James B. Pickett. But would 
 not his loss have been as great in that case as in this ? 
 
 My opinion is, that the Circuit decree should be affirmed throughout ; 
 and the mnjority of the Court concurring in this opinion, it is ordered 
 that the motion be dismissed. 
 
 Chancellor De Saussure, and Justices Richardson, Evans and 
 Butler, concurred. 
 
 JoriNSON, Chancellor. I am not satisfied that the defendant ought to 
 *4801 ^^ charged on account of any aid he might have given *to Reuben 
 -^ Pickett, in removing out of the State ; but on the question as to 
 the right of the defendant to open and examine the judgment obtained 
 by plaintiff against Reuben Pickett, on account of usury in the contract 
 on which the judgment is founded, I concur entirely in the opinion deliv- 
 ered by my brother Johnston. 
 
 Harper, Chancellor. We concur very fully with the Chancellor on all 
 the points which he has considered and decided. The sale of the land 
 was such a transaction as can never be permitted to stand in this Court. 
 He has directed the proceeds of the slaves sold at Lancaster to be paid 
 over to the executions according to their legal priorities, according to 
 the long and well-established rule in this State. We perceive no reason 
 to dissent from his conclusion on the testimony that the defendant, James 
 B. Pickett, did combine with Reuben Pickett, and assist him in claudes-
 
 *480] COLUMBIA, DECEMBER, 183(). 367 
 
 tiiiely and frandvilently removino: bis property out of tlie State, for tlic 
 purpose of eluding the plaiutili''s execution. The obvious consciiuenco 
 on equitable principles is, that he cannot be permitted to retain an advan- 
 tage which he has gained by means of that fraud. 
 
 But there is another point which seems not to have been brought to 
 the view of the Chancellor, and therefore not considered or decided by 
 him. It is, however, made in the cause, and argued as an appeal to us, 
 and it is therefore necessary that we should consider it. It appears from 
 the testimony of two of the witnesses, (and I know of no reason why they 
 should not be credited,) that the contract on which the judgment of plain- 
 tiff was confessed was usurious. It is therefore necessary to inquire 
 whether he is entitled to the aid of the Court in enforcing the judgment 
 obtained on such contract. 
 
 I believe, on the preponderance of authority, the rule of equity to be 
 as stated, 1 Fonb. 25, n.: that a party coming into equity to be relieved 
 from an usurious contract, must do equity by offering to pay what is really 
 due, or the Court will not interfere in his behelf ; but, if a party comes 
 to enforce a usurious contract, the Court will act on the letter of the 
 statute — that is to say, it will regard the contract as void, and dismiss his 
 bill. It is said, lb. 39, 40, that if a fraudulent person come into Court, 
 he shall not have what was bona fide lent. So it was said by Lord 
 Mansfield, professing to consider the subject on equitable principles : 
 *" A lender upon an usurious contract, is precluded from recover- r^j^oi 
 ing any thing upon such a contract. But if the borrower seek '- 
 relief, he must first do what is equitable between the parties." — Fitzroy 
 V. Gvvillim, 1 T. R. 154. 
 
 In Mason v. Gardiner, 4 Br. C. R. 436, a demurrer was sustained to a 
 bill brought to have an usurious bond delivered up for want of an offer 
 to pay what was due. It appears from the argument that it was a cross 
 bill, and it was admitted that the original bill brought to enforce the 
 contract must be dismissed. In Benfield v. Solomons, 9 Ves. 84, it was 
 said by Lord Eldon, that the plaintiff to a bill cannot have relief on an 
 usurious contract without an offer to pay ; but that an usurious creditor 
 coming in bankruptcy, shall have nothing. But as to this point I am 
 not aware that there is any serious doubt. 
 
 A question of more difficulty is, whether, as the plaintiff has obtained a 
 judgment at law, either the defendant himself, or his other creditors, can 
 enter into the consideration of the judgment. It is admitted, upon a 
 well-known equitable principle, that if a judgment had been obtained 
 in due course of law, in which the party had an opportunity of defend- 
 ing himself on the ground of usury, and he had omitted to do so, it 
 would have been too late for him to come into equity for relief. The de- 
 fendant himself, and all privies, would have been concluded by the ver- 
 dict. But in this case the judgment was by confession. In Thompson )'. 
 Berry and Van Buren, 3 John. C. R. 395, Chancellor Kent relieved 
 against an usurious judgment entered upon a warrant of attorney to con- 
 fess judgment, though he refused to relieve against one obtained in 
 due course of law. This may have been, though not directly stated, on 
 the ground that the warrant of attorney to confess was part of the original 
 usurious transaction. It does not appear in this case, so far as I can see, 
 whether the usurious note on which the judgment was confessed, was cxe-
 
 368 SOUTH CAROLINA EQUITY REPORTS. [*-l-81 
 
 cuted with a view to bo secured by the confession. It was an old debt, 
 and the note had been several times renewed. But whether the last usu- 
 rious renewal, when a new party was added to it, was made with a view 
 to the confesson, does not distinctly appear. 
 
 The case of Scott v. Nesbit, 2 Cr. C. R. 641, was one in which an 
 usurious judgment was impugned by the creditors of the defendant. The 
 case is not very perspicuously reported, but appears to be this : A bill had 
 *4821 ^^^^^ ^'^*-^ °'^ behalf of creditors ^generally, for an account of an 
 -' insolvent estate and payment, and a reference to the Master had 
 been ordered, to take the account. The plaintiff's bill was to have an 
 account and to obtain payment of a judgment which had been recovered 
 on an usurious bond. This was referred to the same Master ; in fact it 
 was included in the former order. It was argued that the judgment must 
 bind until it was got rid of at law. The Master disallowed the whole judg- 
 ment. On the cause coming before Lord Thurlow, he thought t-lie gene- 
 ral creditors could do before the Master, only what they could do on a 
 bill filed by them against the judgment creditors. They could only dis- 
 place the judgment by doing what was just — that is, of course, by paying 
 what was really due. The case certainly is authority that the creditors 
 of an insolvent may go into the consideration of an usurious judgment 
 against him. Regarding it as the creditor's bill, he held them bound to 
 offer what was just; leaving us to infer that it would have been different 
 if it had been merely a bill by the usurious judgment creditor, and that in 
 that case the demand would have been disallowed altogether. Indeed, if 
 the creditors were not concluded by the judgment, such is the well esta- 
 blished general rule on the authorities before referred to. I find the note 
 of a case of which I have not the original report, in Hammond's Digest, 
 648, tit. Usury. There was a judgment on a warrant-of-attorney to confess. 
 An issue was directed to try the fact of usury. The assignees of the 
 bankrupt defendant had agreed that the plaintiff might prove his debt 
 under the commission. But the Court held this to mean a provable 
 debt, and not one infected with usury. It is true that in bankruptcy, 
 judgment creditors, as to the receiving of dividends, are on the footing of 
 other creditors. But the case shows that they arc not bound by an 
 usurious judgment against the bankrupt debtor. 
 
 The case of French v. Shotwell, 5 John. Ch. Rep. 565, has been sup- 
 posed somewhat at variance with these views. But I do not perceive 
 the application of that case. There, land was purchased which was bound 
 by an usurious judgment which had been obtained against the vendor. 
 The purchaser filed a bill to set aside the judgment. Chancellor Kent 
 decided that he was a privy in estate with the vendor, and therefore bound 
 by the judgment. He could take the land no otherwise than subject to 
 every liability to which it was subject in the hands of the vendor. The 
 vendor, too, had before filed a bill to be relieved against the judgment, 
 *48S1 *'^'^*^ '^y ^ compromise, obtained fairly and without fraud, his bill 
 -^ had been dismissed. He therefore was certaiidy concluded. 
 
 Certaiidy creditors are not privies, in any sense in which the words 
 have been used. Is there any question but that the creditors of an in- 
 solvent may impeach any judgment obtained against him by fraud and 
 collusion? Is there any question but that they may set aside a voluntary 
 judgment confessed by such debtor ? This is exactly on the same principle
 
 *483] COLUMBIA, DECEMBER, 183G. 369 
 
 that they may set aside a voluntary conveyance; and even subsciiuent 
 creditors may do this, if the party were indebted at the time, wliich I 
 suppose can hardly be doubted with respect to the debtor in this case. 
 A judgment confessed on a contract declared by law to bo absolutely 
 void, is in effect a voluntary judgment. The law imputes blame to both 
 the parties to an usurious contract, and such confession may well be re- 
 garded as being always made by collusion to the prejudice of creditors. 
 
 The present plaintiff comes to enforce an usurious judgnacnt. It is 
 immaterial what may be the fraud of the defendant ; on the principles 
 laid down, it should seem that equity would interfere in favor of neither. 
 
 Justices Gantt and O'Neall concurred in this opinion. 
 
 O'JS'eall, J. I am also against the Circuit decree, on the ground that 
 there was uo fraud in sending the negroes out of the State, 
 
 Eryin Brunson, and Wife, v. James King, Administrator, and Others, 
 Heirs of Andrew Hunter. 
 
 A. H. having provided for his lawful children, and having several illegitimate 
 children, and about to marry their mother, in order to provide lor liis natural 
 children, and his intended wife, and the issue of the marriage, executed a deed of 
 all his real estate and twenty-one slaves, in trust for himself during life, and at 
 his death one-fourth part thereof for his natural chihlren in fee ; one- third of the 
 remainder to the use of his intended wife for life, and then to the children of their 
 marriage in fee ; and the other two-thirds of the remainder to the use of such 
 persons as his intended wife should appoint, reserving to himself the right to 
 revoke or alter such appointment, and in default of appointment, to his said wife, 
 her heirs, executors and assigns. The marriage took place, and A. II. acquired 
 some property after the execution of this deed. By his will, afterwards executed, 
 he referred to and confirmed the settlement, and by a general residuary clause, 
 gave all the rest of his estate to the children of his last marriage, and then 
 declares " it is his wish" that his wife and children remain on the plantation until 
 another place be provided, and that his mills be rented and his negroes hired out, 
 &c., and other dispositions inconsistent with the deed. The wife made no appoint- 
 ment. JTeld : 1. That the deed did not authorize A. H. to change its uses, but 
 merely to control his wife's appointments ; 2. That the will was not intended, and 
 could not operate, as a revocation of the uses of the deed, and as a declaration to 
 other uses ; and 3. That on the death of A. H. his wife took an absolute estate 
 in the remaining two thirds described in the deed. [*4S4] 
 
 Although the words " it is my wish" iu a will, generally operate as a direct bequest, 
 yet they will be construed to mean rattier an inclination of the mind, than an act- 
 of the will, where a different construction would produce inconsistency and repug- 
 nance. [*490] 
 
 Where one conveyed in trust, reserving a life estate to himself, a portion of his 
 estate to such persons as his wife should appoint, and in default of aiipointment 
 to her heirs and assigns, on the death of the husband the wife takes an absolute 
 estate. [*490] 
 
 Before Chancellor De Saussure, at Darlington, February, 1836. 
 
 Andrew Hunter had, by his first marriage, five sons, John, James, 
 Andrew, Dorrell and Isaac ; and after the death of his wife, he had four 
 illegitimate children by Mary Andrews — that is to say, Laney Andrews, 
 Solon Andrews, Satyra Andrews, and Cambyses Andrews. In con-
 
 370 SOUTH CAROLINA EQUITY REPORTS. [*483 
 
 templation of marriage with the said Mary Andrews, and for the 
 ^ -, purpose of making a provision for her *and the said natural child- 
 J ren, and for the lawful issue of the said Mary, by the testator, 
 begotten or to be begotten, the testator, by deed bearing date the 10th 
 February, 1819, conveyed to George Bruce, all the real estate whereof he 
 was then seized, wherever situate or being, and twenty-one negro slaves, 
 by name, Asia, Africa, America, young Jack, Alfred, Asgill, Salem, 
 Howard, young Peter, young Flora, Becky, Catey, Amey, Esther, 
 Bechard, Maria, Penny, Clarissa, Mowah, Eliza and Louisa, and their 
 future issue and increase ; in trust for the said Andrew, the grantor, 
 during his natural life, and after his death, so much thereof to the use of 
 the said Laney Andrews, Solon Andrews, Satyra Andrews and Cambyses 
 Andrews, his said illegitimate children, their heirs and assignees forever, 
 as shall be equal to one-fourth part of the said real estate and slaves, and 
 of such other real and personal estate as he had already given them, or 
 any of them, taking into the estimate of the said one-fourth part such 
 real and personal estate as aforesaid by him given to them, or any of them 
 — intending thereby to make as large a provision for them as by law he 
 was permitted to make, to be equally divided between them, so that their 
 shares at the death of the said Andrew Hunter, the grantor, should be 
 equal ; and upon the further trust, that on the death of the grantor, the 
 said Andrew Hunter, the said George Bruce should stand seized of one- 
 third part of the remainder of the said real and personal estate', to the 
 separate use of the said Mary, his intended wife, for life ; and after her 
 death to the use of such child or children of the said Mary, by the said 
 Andrew, the grantor, begotten, or might thereafter be born and be living 
 at the time of her death. And upon the further trust, that the said 
 George Brnce should stand seized and possessed of the other two-thirds 
 of the remainder after the death of the said Andrew Hunter, the grantor, 
 to the use of such person or persons as the said Mary might by deed, 
 under hand and seal, or by her last will and testament limit and appoint ; 
 and on failure of such limitation and appointment, to the said Mary, her 
 heirs, executors, administrators and assigns forever, I'eserving to himself, 
 *4.851 *^^o^^'6ver, the power of revoking any limitations and appointments 
 -I the said Mary might make, and of declaring the uses of the said 
 two-third parts of the said remainder, for the purpose however, alone, of 
 making provision for any legitimate clnkl or children of the said Andrew, 
 the grantor, now born or hereafter to be born ; and reserving also the 
 power of settling, disposing of, changing or exchanging, all or any part 
 of the said real or personal estate, the proceeds thereof being, however, 
 subject to the same uses, limitations and conditions as the original estate. 
 
 The marriage contemplated by this deed was had and solemnized, and 
 the issue of the marriage was three children, Mandanna, Mary and 
 Caroline. 
 
 On the 16th May, 1822, the testator made and executed his last will 
 and testament, wherein, after the usual introductory clauses, he says : " I 
 do by these presents confirm a marriage deed or settlement, dated the 
 10th February, 1819, by me made on the day above mentioned and at 
 the time of my marriage with my present wife, Mary, in which deed or 
 settlement George Bruce is trustee." He then recites that he had already 
 sufficiently provided for all the children of his first marriage, and had put
 
 *485] COLUMBIA, DECEMBER, 1836. 371 
 
 them in possession of their estates, and proceeds thus : " I give, devise 
 and bequeath all the residue and remainder of my real and personal 
 estate to my three youngest daughters, Mandanna, Mary and Caroline," 
 with cross remainders in the event of any of them dying without issue, 
 and in the event of all dying without issue, to be divided amongst all his 
 children. He then recites that he had already provided for his illegitimate 
 children by conveyances of record in the Clerli's office, to the extent 
 which the law allowed, and confirms the said conveyances, and proceeds : 
 "It is my wish that ray wife, Mary, and my several children by her, 
 remain on my plantation, under the direction of my executors, until my 
 crops be housed and a place comfortably and suitably prepared for them 
 ou one of my upper places, at the expense of my estate ; and that Silla 
 and all the rest of the family, with old Jack, old Phebe and old Flora, 
 remain on the place where my family shall live ; and that the said old 
 negroes be treated humanely by my executors during their lives, but more 
 particularly in old age. The remainder of my slaves to be hired out 
 annually by my executors, and my mills I wish rented for a term not less 
 than ten years, but the rent money to be annually paid my executors. 
 My executors are to allow my wife, during her natural life or widowhood, 
 household *and kitchen furniture and farming utensils, horses, and r+^oft 
 a competency of stock, so as to afford her and my children with L 
 her, a comfortable and reasonable support; and the several children, 
 Laney, Satyra, Solon, Cambyses, Mandanna, Mary and Caroline, as they 
 shall marry or arrive at full age, shall receive from my executors their 
 several allotments as before stated ; and should my wife, Mary, die or 
 marry, the portion allotted to her for her support and maintenance, is to 
 be sold by my executors on at least one year's credit, and the money 
 arising from the sale to be put to interest for the benefit of my children 
 as above stated." By a codicil which appears to be without date, he 
 authorized the executor to lease the mills annually until a prospect should 
 appear to lease them for the term mentioned in the will. 
 
 It is conceded that the testator was, at the time of the execution of the 
 marriage settlement, seized of the mills and plantation mentioned in the 
 clause of the will last above recited, and it is apparent that the slaves 
 specifically named in the will are not included in the settlement ; and 
 although not judicially ascertained, it is understood that he d\e<j. seized 
 and possessed of property to a considerable amount, acquired subse- 
 quently to the execution of the settlement. 
 
 The object of this bill is to obtain partition of the estate, according to 
 the rights of the several parties under the settlement and the will. There 
 is no claim interposed on the part of the children of the first marriage, 
 nor do the illegitimate children claim more than the fourth part of the 
 real and personal estate whereof the testator was seized and possessed at 
 the time of the execution of the settlement, including the advancements 
 which he had made to them respectively, and about which there is no 
 controversy ; but between the widow, Mary, and the three younger 
 children, Mandanna, Mary and Caroline, the questions arise — 
 
 1. Whether by the terms of the marriage settlement, the testator re- 
 served to himself the power of revoking the power of appointment 
 granted to his intended wife, as to the remaining two-thirds of his estate, 
 and to declare other uses :
 
 372 SOUTH CAROLINA EQUITY REPORTS. [*486 
 
 2. If he did, whether the will can operate as a revocation of the power 
 and a declaration of uses : 
 
 3. If the power of revocation was not reserved or not executed, what 
 estate did the intended wife take in the remainino; two-thirds ? 
 
 The Chancellor who presided in the Circuit Court was pleased to 
 *m'7l *^clJiido6 ^"f^ decree, that by the terms of the marriage settlement, 
 -" the power of appointment granted to the intended wife, was re- 
 served to the testator, and that the will operated as a revocation and a 
 declaration of uses; that the three younger children took the remaining 
 two-thirds of the estate under the residuary clause of the will — and 
 ordered partition accordingly ; and the questions before stated have been 
 revived here on an appeal from that decree. 
 
 The widow, Mary Hunter, appeals from so much of this decree as de- 
 termines that the will is an execution of a power under the deed, and 
 moves the Court of Appeals to reverse the same, or so modify it as to 
 decide that she is entitled to an absolute estate in the two-thirds referred 
 to, in default of any appointment during coverture ; or at least, that she 
 still has a right to aj>point the same to such uses as she may choose, 
 upon the grounds following : — 
 
 1. The power reserved in the deed to the donor is only a power to 
 control an apjiointment by the wife, and is dependent for its exercise 
 upon the fact of her making an appointment. 
 
 2. The will is not an execution of any power reserved in the deed. It 
 does not, and is not intended to revoke any part of the appointment or 
 limitations in the deed ; nor does it declare any neiv ^ises. 
 
 3. The deed and will can stand together — the deed operating on the 
 property mentioned in it, and the will on other property of the testator. 
 
 Wilkins, for appellant. 
 
 Sims, contra. 
 
 Chancellor Johnson, [after making the foregoing statement of facts, 
 and of the (juestions arising out of them.] 
 
 Whether trusts are created by deed or will, the rules of interpretation 
 are, in general, the same in the Courts both of law and equity. Equity 
 indeed follows the rules prescribed by the Courts of law in regard to the 
 creation and limitation of legal estates. — 2 Mad. Ch. 453, and the cases 
 cited in the notes. If created by deed, the construction is determined by 
 the rules of law prescribed for the interpretation of deeds, all of which 
 are resolved into the universal rule, that whether by deed or will, the in- 
 tention, to be ascertained according to the rules of law, must govern. 
 
 In the solution of the first proposition, we are, therefore, led to inquire, 
 what was the intention of the testator in reserving to himself, in the deed, 
 *48S1 ^^"^ power of " revoking any limitation or *appointment the said 
 -^ Mary may make, and of declaring the uses of the said two-thirds 
 parts of the said remainder," &c. And upon recurring to the deed and 
 examining its contents, it will be found that'the whole estate, real and per- 
 sonal, is conveyed to the trustee, George Bruce, in trust for the testator 
 during his life, and after his death, one-fourth part to the use of his ille- 
 gitimate children in fee ; one-third part of the remainder to his intended 
 wife for life, remaiuder to the children of the marriage in fee ; and the re-
 
 *488] 
 
 COLUMBIA, DECEMBER, 1836. 373 
 
 maining two-thirds of the said remainder to the use of such person or 
 pei'sons as liis said intended wife miu^ht appoint, and in default of such 
 appointment, to the use of the said intended wife in fee. Here then is a. 
 final disposition of the testator's whole interest in the estate, and you 
 look in vain through the deed for any reservation of power which author- 
 izes hira to revoke, change or alter any grant, condition or limitation 
 which he himself has made in that deed. The power reserved is in terms 
 that of " revoking any limitation or appointment that the said Mary Hunter 
 may make," and of declaring other uses, and could not therefore be ex- 
 ercised until the case provided for (an appointment by the intended wife) 
 had been made. 
 
 The question may be simplified and better understood, by supposing- 
 that instead of a deed like this, there had been mutual covenants between 
 the parties — on the part of the testator, to grant the estate to the in- 
 tended wife, and to such person or persons as she may appoint, and in 
 default of such appointment, to the intended wife in fee ; and on the part 
 of the intended wife to permit the testator to revoke any appointment 
 she might make, and which he disapproved, and to declare other uses. 
 Can it be maintained, that the power of revocation existed independent 
 of the previous exercise of the power of appointment ? or that under 
 the covenant to permit the testator to revoke the appointment, he might 
 revoke his own deed ? There is certainly no principle or rule of law to 
 authorize such a perversion of the obvious intent : and yet the cases are 
 identical 
 
 Conceding, however, that the power of revoking the deed was reserved 
 to the testator, independent of the exercise of the power of appointment 
 by the wife, still I think it very clear that the will was not intended, and 
 cannot operate as a revocation and declaration to other uses. 
 
 In the rules prescribed for the construction of wills, there are 
 *none more familiar, than that the intention of the testator to be r^,Qo 
 collected from the whole will must govern, and that if possible it ^ 
 must be so construed that the whole must stand together, and effect given 
 to every provision in it. Now, that the testator did not intend, by his 
 will, to revoke the marriage settlement, is conclusively shown by his re- 
 cital and positive re-affirmation of it in the will. " I do by these pres- 
 ents confirm a marriage deed or settlement, dated," &c., is the language 
 of the will ; and the rule is, that a paper writing recited or referred to in 
 a will, is incorporated with, and constitutes a part of the will, as much 
 so as if the testator had declared his will in the terms of the writing. — 
 Habergham v. Vincent, 2 Ves. 228. But it is said that the subsequent 
 provisions of the will are inconsistent with the deed, and therefore oper- 
 ates as a revocation of the deed and an appointment to uses, althou2:h 
 there is no express declaration of an intention to revoke. Now, it ''is 
 true, that the intention to revoke need not be expressed in the will, but 
 the intention mutt be so clear that no other reasonable intent can be im- 
 puted to the will ; nor will it be permitted to operate as a revocation 
 where the will can have its operation without it. — Bradish v. Gibbs, 3 
 John. Gh. Rep. 551 : nor unless it is demonstrable that the testator had 
 
 the power in his contemplation, and intended by his will to execute it. 
 
 Doe V. Roake, 2 Bing. 497 ; 9 Eng. Com. Law Rep. 496. And it re 
 mains to be seen, whether the inconsistencies between the deed and the 
 YoL. I.— 47
 
 374 SOUTH CAROLINA EQUITY REPORTS. [*489 
 
 will, are so irreconcilable that the will cannot operate consistently with 
 the deed. 
 
 It is before noticed that the will contains an express re-affirmation of 
 the deed, and following that, is the general residuary clause by which the 
 testator disposes of the residue and remainder of his estate to his three 
 younger children with cross remainders over. In this there is certainly 
 nothing inconsistent with the deed. It operates on subsequently-acquired 
 property, if there is any, but if there is nothing on which it can operate, 
 it does not revoke the provisions of the deed. Then follows the clause 
 last above recited, by which the testator declares, that " it is my wish that 
 my wife, Mary, and my several children by her, remain on my plantation 
 under the direction of my executors, until my crops be housed and a suit- 
 able and comfortable place be i)repared for them on one of my upper 
 plantations," &c. ; and in the same clause goes on to direct that his ne- 
 groes should be hired out, and his mills rented, (property of which he 
 ^ -, was confessedly seized and *po8sessed at the time of the execu- 
 -J tion of the deed,) and to make other dispositions, inconsistent 
 with the distribution provided for in the deed, at the time of his death. 
 It will be observed, however, that this clause begins with, " it is my wish," 
 and although these terms are frequently held to import a direct devise or 
 bequest, or to create a trust, (6 Cruise Dig. 144-204,) and would gener- 
 ally so operate where the will contained nothing inconsistent with it; yet 
 the rule is not so imperative as to compel us to do violence to the gen- 
 eral intent in giving them that effect. In their general acceptation they 
 import an inclination or disposition of the mind, not an act of the will ; 
 and it is, I think, very apparent that the testator intended them so to be 
 understood here, at least so far as they appear to be inconsistent with 
 the limitations of the deed. The preceding clauses, it will be recollected, 
 contained a final disposition of all his estate, real and personal — the 
 deed of the property described in it, and the residuary clause, of every 
 thing else that he possessed; and if this last clause is interpreted a di- 
 rect bequest, it leads to that inconsistency and repugnancy which the rules 
 of construction repudiate. If taken in their ordinary acceptation, they 
 are merely advisory, and render the will thus far consistent — and this I 
 take to be their true interpretation. This last clause, however, contains 
 directions to the executors to allow the wife, during her natural life or 
 widowhood, household and kitchen furniture, horses and other stock, so 
 as to afford her and her children a reasonable and comfortable support, 
 and is thus far consistent with the deed, and may well stand with it and 
 supersede the preceding residuary clause. 
 
 On the third and last proposition, there is, if possible, still less doubt. 
 On the death of the testator, two-thirds of the remainder of the estate is 
 limited by the terms of the deed, to such person or persons as the wife, 
 Mary, should by deed or will limit and appoint, and in default of such 
 appointment, to the wife, her heirs, executors, admiuist^ators and assigns 
 forever. No appointment has been made, and the question is, what estate 
 does she take ? 
 
 The general rule is, that when a greater and a less estate concentre in 
 the same person, the lesser merges in the greater; or, according to the 
 Master of the Rolls, in Philips v. Bridges, 2 P. W. 126, where a legal 
 and equitable estate unite in the same person, there is nothing on which
 
 ^490] 
 
 COLUMBIA, DECEMBER, 1S36, 375 
 
 the equitable can act ; or in better phrase, it no longer exists So in 
 the case of WagstaU" v. Wagstaff, *2 P. W. 259. where the Lord j-^ . 
 Chancellor sui)poses the case of a trust for the use of J. S., his L 
 heirs and assigns, or to such person or persons as he shall appoint; on 
 which he observes, that the last word-; (such person or persons as he 
 shall appoint) are no more than is implied before, el e.rpressio ear am 
 quce tacite insiuit nihil operatur : and if the terras of this limitation 
 in the deed are transposed, which may be done without in the least 
 impairing the intent, we have the precise case. Upon the death nf the 
 testator, Mary, the wife, therefore took an absolute estate in the re- 
 maining two-thirds of the estate described in the deed — Sugden on 
 Powers, 58. 
 
 By the terms of the deed one-fourth part of the real and personal 
 estate is limited to the testator's illegitimate children, taking into due 
 estimate such real and personal estate by him given to tliera or any of 
 them. The power of selling, disposing of, changing or exchanging, of 
 all or any part of the estate, is also reserved to the testator, provided, 
 however, that the proceeds thereof should be subject to the same uses, 
 limitations and conditions as in the original deed. It is probable, too, 
 that the testator acquired property subsequently to the exe(?ution of the 
 deed, or had other property at the time on which the residuary clause of 
 the will would operate ; and before the partition prayed for can be 
 awarded, it will be necessary to ascertain in what amount the illegitimate 
 children were respectively advanced by the testator ; what property con- 
 tained in the deed, if any, had been sold, disposed of, exchanged or re- 
 exchanged, and whether the proceeds had been reinvested, and in what ; 
 and whether the testator was, at the time of his death, seized and pos- 
 sessed of any, and what other real and personal estate. 
 
 It is therefore ordered and decreed, that the decree of the Circuit 
 Court be and the same is hereby set aside and reversed, and that the case 
 be referred back to the Commissioner to ascertain — 1. In what the tes- 
 tator's illegitimate children, Laney Andrews, Solon Andrews, Satyra 
 Andrews and Cambyses Andrews, had been advanced by him in his life- 
 time, and its value : 2. Whether the testator, in his lifetime, sold or 
 otherwise disposed of the whole or any part of the property described in 
 the said deed, and whether the proceeds have been reinvested, and in 
 what; or whether anything, and what, has been substituted in its place : 
 3. Whether the testator was, at the time of his death, *seised and p^^^<^ 
 possessed of any other real or personal estate than that described 
 in the deed and not specifically disposed of by the will, and in what it 
 consisted. On the coming in of this report, a writ of partition will be 
 ordered for the partition of the real and personal estate, as well as that 
 described in the deed, as any other of which the testator may have died 
 seized and .possessed, not specifically disposed of by the will, according 
 to the principles of this decree. 
 
 Chancellor Johnston, and Justices O'Xeall, Gantt, Earle and 
 Butler, concurred.
 
 376 SOUTH CAROLINA EQUITY REPORTS. [*492 
 
 Joseph Massey, Administrator of George Massey, deceased, vs. Joseph 
 D. Massey, Administrator of Benjamin Massey, deceased, John B. 
 Cook, and Charlottte, liis Wife, Henry G. Massey, John B. Mas- 
 sey, and William Massey, his Guardian, James H. Gilmoke, and 
 Harriet C, his Wife, and B. S. Massey, lier Guardian, and Ben- 
 jamin Massey, Guardian of Mary E. Massey, (now Mrs. Haigood.) 
 
 Executors and administrators are not entitled to two and a-half per cent, in addition 
 to ten per cent , for making interest. By the Act of 1789, they are not allowed 
 ten per cent, for letting out to interest and receiving in again, nor ten percent for 
 making interest, but two and a-half for letting out, and two and a-half for taking 
 in, until the commissions reach ten per centum, which is the maximum. [*4U.5] 
 
 On a bill by an administrator against a distributee and her guardian to have money 
 refunded which was paid by mistake to the guardian more than four years before 
 the filing of the bill, but paid over by him to the ward within tliat time, it was 
 held, that the ward might protect lierself by the statute of limitations,' although 
 not pleaded by the guardian, especially a?; the guardian had paid over all the 
 funds received before notice of the mistake which discharged him from liability. 
 [*490] 
 
 Guardian not liable for money paid to him by mistake, after he had paid it over to 
 his ward without notice. [*49t3] 
 
 An administrator who is charged with interest on an annual balances, shall not be 
 charged with interest on the interest he has made and returned, the party charg- 
 ing must elect between the methods of stating the accounts. [*497] 
 
 George Massey died intestate, and the plaintifiT, Joseph Massey, ad- 
 ministered on his estate. The intestate, George Massey, left a widow 
 and seven children. By his first wife he left the following cliildren : 
 Joseph D. Massey, Charlotte Massey, (now Mrs. Cook,) Henry G. Mas- 
 sey and Benjamin Massey; and by his last wife, the following : John B. 
 Massey, (and William Massey is now his guardian,) Harriet C. Massey, 
 (now Mrs. Gilmore, and Benjamin S. Massey was her guardian,) and 
 Mary C. Massey, (now Mrs. Haigood, Benjamin Massey was her guar- 
 dian.) In 1819, about a year after George Massey's death, his son Ben- 
 jamin died unmarried and intestate. Joseph Massey, the plaintiff, having 
 sold the property of his intestate and collected the debts, and having also 
 made regular annual returns of his accounts, in 1827 procured an order 
 from the Ordinary, for partition of the estate amongst the distributees ; 
 and by the instructions of the Ordinary, and contrary to his own impres- 
 sions, after paying the widow the one-third of the estate, he paid over 
 the remainder, including the share of the deceased child, Benjamin, to 
 the six surviving children, in equal shares. 
 
 *4931 *^^ 1832, Joseph D. Massey, a brother of the whole blood to 
 the deceased, Benjamin, administered on his estate, cited the 
 plaintiff before the Ordinary, and obtained a decree against him for 
 $1316 03, the share of Benjamin, being the one-seventh of two-thirds of 
 his father's estate ; one-half of which the plaintiff had properly paid to 
 the brothers and sister of the whole blood, and the other half improperly 
 to the brothers and sisters of the half blood. Joseph D. Massey, as the 
 administrator of Benjamin, brought his action at law against the plaintiff 
 on the administration bond, and obtained judgment, predicated on the 
 said decree, for the full amount thereof. 
 
 The bill was filed in June, 1833, to enjoin the judgment at law, to
 
 *493] COLUMBIA, DECEMBER, lb36. 377 
 
 obtain credit thereon for the amounts already paid by the plaintiff to the 
 brothers and sister of the whole blood of the said Benjamin, and which 
 they were legally entitled to ; and to require the brothers and sisters of. 
 the half blood, and their respective guardians, to refund the sums paid 
 thera on the mistaken distribution of the estate of Benjamin. 
 
 James H. Gilmore and wife pleaded the statute of limitations. The 
 payment was made by the plaintiff to B. S. Massey, Mrs. Gilmore's 
 guardian, in 1827 ; and in 1831 he paid over the funds and settled in full 
 for his guardianship, without having notice of the plaintiff's claim. The 
 guardian pleaded this in discharge of his liability. 
 
 The cause came to a hearing before Chancellor De Saussure, at York, 
 June, 1834. 
 
 His Honor overruled the plea of the statute of limitations, and ordered, 
 "That it be referred to the Commissioner to examine and report what 
 proportion was overpaid to each of the younger children, (those of the 
 half blood,) and how much was underpaid to the elder children, (those 
 of the whole blood,) of the estate of Benjamin Massey. It is fui'ther 
 ordered, that the injunction previously granted by the Commissioner, be 
 continued till the coming in of the report and the decision thereon." 
 
 In pursuance of this decree, the Commissioner held a reference and 
 stated the accounts. 
 
 On the reference, the plaintiff's annual returns were in evidence, in 
 ■which he made regular returns of the interest made and received by him. 
 In his report, the Commissioner charged the plaintiff with interest on the 
 annual balances, including interest on the ^interest returned The r^iqA 
 principal sale bill fell due on the 28th January, 1818; the Com- '- 
 missioner adhei'ing to the rule that moneys received should not bear 
 interest against the administrator in the current year, charged no interest 
 on it until the first of January succeeding. 
 
 The cause came on again laefore Chancellor Johnston, in June, 1885, 
 on the report, and exce])tions by both parties. 
 
 Of the several exceptions, it is only necessary to notice the following : — 
 
 By the plaintiff. 
 
 1. That the plaintiff, having in his returns returned and accounted for 
 the whole of the interest made and received by him, and no attempts 
 having been made to falsify them, and no negligence imputed, he should 
 not be charged with interest beyond that returned. 
 
 2. That the report charges the plaintiff with interest on the interest 
 returned, although the defendants admit, that according to their mode of 
 charging, they are not entitled to the interest itself thus returned ; and 
 consequently cannot be allowed interest thereon. 
 
 4. That the plaintiff" should not be charged with interest on the annual 
 balances, as he had charged himself with all the interest he made and 
 received. 
 
 7. That commissions are not allowed to plaintiff in the report, at two 
 and a-half per cent, on the interest made, in addition to ten per cent, for 
 making interest. 
 
 By the defendants. 
 
 2. That the Commissioner, in his report, did not charge the plaintiff 
 with interest on $9133, (the sale bill,) from 28th January, 1819, because,
 
 378 SOUTH CAROLINA EQUITY REPORTS. [*494 
 
 in niaking up the accounts previously, be had commenced the annual 
 charges on the first of January. 
 
 So much only of the decree as relates to these exceptions is presented. 
 
 JoHxsTOx, Chancellor. This case comes up on a report of the Com- 
 missioner, and exceptions thereto. 
 
 The first exception of the plaintiff is, I think, founded in misconcep- 
 tion. The interest referred to in the plaintiff's returns, is extra interest 
 made by renewing notes. But charging himself with this, does not 
 exempt him from ordinary interest. The exception is overruled. 
 *4Q'1 *-'■ ^^^® '^^ ^^"^ endeavored to find out the practical application 
 -^ of the plaintiff's second exception : as I cannot, I must overrule it. 
 
 The plaintiff's fourth exception is overruled for the reasons stated in 
 relation to the first. 
 
 Tlie plaintiff"'s seventh exception insists that he is entitled to two and 
 a-half per cent, in addition to ten per cent, allowed administrators for 
 interest. Taveau v. Ball, 1 M'Cord, Cu. Rep. 462, seems to support 
 this construction of the act. But it appears to me to be so plain an inva- 
 sion of the act, that I will give the Supreme Court another opportunity 
 to consider the question. By the act it is provided, (a) not that an execu- 
 tor shall receive ten per cent, for letting out to interest and receiving in 
 again, nor ten per cent, for interest he shall make for the estate ; but that 
 he shall receive two and a-half for letting out, and two and a-half for 
 taking in, until the commission reach ten per cent, on the interest made, 
 which is expressly declared to be the maximum. In all cases of short 
 loans, ten per cent, on the interest made will fall short of five per cent, 
 for letting out and taking in the capital ; and therefore, as the limit is 
 ten per cent on the interest, the operation of the act is, in all such cases, 
 the same as if ten per cent, had been expressly given on the interest, 
 instead of allowing commissions to that limit on the capital. The case 
 ■would be very different, however, on a loan for twenty years secured by 
 bond ; then, only five per cent, on the capital would be the commissions — 
 falling far short of ten per cent, on the interest. The exception to the 
 report on this point, is overruled. 
 
 The defendants' second exception is overruled. Harper v. Ardis, 2 
 Hill, 560, is against it, and governs me, although I dissent from it. 
 
 The plaintiff appealed from the decision of Chancellor Johnston, in 
 overruling the exceptions on his part, 
 
 (a) The 29th Section or the Act of 1789 (P L. 49-5) is as follows: " All and every 
 executor or adinitiistrator shall for his, her, or their care, trouble and attendance in 
 the execution of their several duties, take, receive or retain, in his, her, or their 
 hands, a sum not esceeding the sum of fifty shillings for every one hundred pounds 
 ■which he, she or they shall receive, and the sum of fifty shillings for every one hun- 
 dred pounds which he, she or they shall pay away, in credits, debts, legacies or other- 
 ■wise, during the course of their or either of their managements or administrations, 
 and so in proportion for any sum or sums less than one hundred pounds. Provided, 
 that no executor or administrator shall for his. her or their trouble in letting out 
 any moneys upon interest, ami again receiving the same, be entitled to take or retain 
 any sum exceeding twenty shillings for every ten pounds, for all sums arising by 
 moneys let out to interest, and in like proportion for a larger or lesser sum ; nor 
 shall any executors or administrators who may be creditors of any testator or intes- 
 tate, or to whom any sum of money or other estate may be bequeathed, be entitled 
 to any commissions for paying or retaining to themselves, any such debts or legacies
 
 *495] COLUMBIA, DECEMBER, 1836. 379 
 
 The defendants, Gill more and wife, appealed fi'om the decree of Chan- 
 cellor 'De Saussnre, overrnling their plea of the statute of limita- 
 tions ;* and all the defendants appealed from the decree of Chan- r;;; < qp 
 cellor Johnson, overruling their second exception. And the ^ 
 defendant, B. S. Massey, the guardian of Mrs. Giliuore, appealed and 
 now moved that the bill as to him be dismissed, on the ground that his 
 plea was sustained. 
 
 Rogers and Hill, for the plaintiff. 
 
 Mills and Witherspoon, for the defendants. 
 
 Chancellor Johnston delivered the opinion of the Court. 
 
 This Court is of opinion, that Jas. H. Gilm(3re and wife are entitled 
 to the benefit of their plea of the act of limitations The money now 
 sought to be recovered from them, was paid over to Mrs. Gilmore's guar- 
 dian in 182T ; and the bill to recover it back was not filed until 1833. 
 The relation between the administrator and the guardian was ter.uiuated 
 by the payment of the money. Indeed, with respect to the excess over 
 the ward's share, that relation never existed. It is a simple case of money 
 paid by mistake, and action brought after the lapse of four years to 
 recover it back. 
 
 It is argued that inasmuch as the guardian to whom the plaintiff paid 
 the money does not plead the act, and therefore the plaintiff can recover 
 it from him, who in his turn can go over to his ward for indemnity — that 
 from these circumstances it follows, that the ward cannot protect her- 
 self by the statute. 
 
 If the plea is a good defence for the guardian, which he collusively 
 neglects to make, the ward is not bound. So it was decided in Peyton 
 V. Peyton, (Charleston MS. cases,) where a creditor having called the 
 administrator and distributees before the Court, it was held that although 
 the administrator would not plead the act, the distributees might do it 
 for him, and thus protect their interests. 
 
 But there is another answer. Although the guardian has not pleaded 
 the statute of limitations, he has pleaded and proved a full administra- 
 tion, (by settlement with his ward,) of all that came to his hands, and 
 this before notice of any mistake. This discharges him. And as, by 
 the argument to which I have alluded, the ward's liability to the adminis- 
 trator is made to depend on the previous liability of the guardian, it fol- 
 lows that there can be no recovery here against the ward. 
 
 The bill must therefore be dismissed as to Gilmore and wife ; but with- 
 out costs. 
 
 *The bill must also be dismissed as to Mrs. Gilmore's guardian ; r*^g>j 
 he having sustained his plea of having paid over the assets before 
 notice from the plaintiff. 
 
 With respect to the accounts, I am directed to say that the Court is, 
 except in one or two particulars, satisfied with the circuit decision on 
 the exceptions. 
 
 It is their opinion that if the defendants charge the administrator of 
 George Massey according to the ordinary rule, with interest on the 
 annual balances, he should not be charged with interest on the interest 
 returned by him. The defendants must elect between the two methods
 
 380 . SOUTH CAROLINA EQUITY REPORTS. [*497 
 
 of stating the accounts. If they choose to charge the interest returned, 
 that will dispose of the exception relating to the sale bill. If they choose 
 to charge by the ordinary rule, the question whether the interest on the 
 sale bill shall be charged as contended for, will arise. That question is 
 now pending before the Court in another case : and had better be left 
 open in this until decided in that, or until the report comes in again. It 
 may be, that the defendants' election may render it unnecessary to decide 
 it in this case. 
 
 Let the circuit decrees be modified according to the foregoing opinion ; 
 and the case remanded to the Circuit Court. 
 
 Chancellors De Saussure, Johnson and Harper, and Justices 
 O'Neall, Richardson, Evans and Butler, concurred. 
 
 n:AQQi * i^^^i^ ^ct of the Legislature was passed on the 21st day of 
 
 -I December, 1836, entitled " An Act to organize the Courts of 
 
 this State," which, after prescribing the times and places of holding 
 
 the Courts of Law and Equity, provides, amongst other things, as 
 
 follows : 
 
 Sec 5. That all appeals from the Courts of Law shall be heard and 
 determined in a Court of Appeals, consisting of the Law Judges — and 
 that all appeals in Equity shall be heard and determined in a Court of 
 Appeals, consisting of the Chancellors : That the said Courts shall meet 
 at the same time, and be held as follows : that is to say : at Charleston, 
 on the first Monday in February ; and at Columbia, on the first Monday 
 in May, and fourth Monday in iVovember. 
 
 Sec. 6. That in all questions of Law, as distinguished from Equity, 
 the Court of Chancery shall follow the decision of the Court of Law. 
 
 Sec. Y That upon all constitutional questions arising out of the Con- 
 stitution of this State, or of the United States, an appeal shall lie to the 
 whole of the Judges assembled to hear such appeals : That an appeal 
 shall also lie to the whole of the Judges upon all questions upon which 
 either of the Courts of Appeal shall be divided, or when any two of the 
 Judges of the Court shall require that a cause be further heard by all the 
 Judges. 
 
 Sec. 8. That the Judges of Law and Equity, when assembled as afore- 
 said in one chamber, shall form a Court for the correction of all errors in 
 Law or Equity, in the cases that may be heard before them : and that it 
 shall be the duty of the Judges to make all proper rules and regulations 
 for the practice of the said Court of Errors, and for the mode of bringing 
 causes before them. 
 
 (
 
 CASES IN CHANCERY 
 
 ARGUED AND DETERMINED IN THE 
 
 COURT OF APPEALS OF SOUTH CAROLINA. 
 
 ®IjarIestott — J'fbruarg, 183Y. 
 
 CHANCELLORS PRESENT. 
 
 Hon. henry W. DE SAUSSURE, President. 
 Hon. DAVID JOHNSON, 
 Hon. WM. HARPER, 
 Hon. J. JOHNSTON. 
 
 J. B. Thompson, Administrator de bonis non of Hance M'Culloch, 
 vs. James T. Buckner. 
 
 Bill by administrator de bonis non against defendant to account as former adminis- 
 trator, his administration having been revoked. There were but two distributees, 
 of whom defendant's wife was one : he had paid the debts and obtained an assign- 
 ment from the other distributee. Held, that the validity of the deed of assignment 
 could not be impeached by the plaintiif. If obtained by fraud, none but the 
 distributee or his representatives could impeach it, and it was a fraud on his 
 creditors, they only could complain. And for the same reason the will of the 
 distributee disposing of his interest in the estate, was rejected. [*uOi)] 
 
 And a decree in favor of defendant's wife for alimony settling her portion of her 
 father's estate to her separate use. is irrevelant and inadmissible. The adminis- 
 trator de bonis non cannot call defendant to account for her benefit. She might 
 enforce her own decree. [*50l] 
 
 Nor can the administrator de bonis non in such case sustain the bill on account of 
 judgments remaining of record unsatisfied ; especially where from lapse of time 
 they may be presumed to be satisfied, and where the judgmeut creditors are not 
 parties claiming payment. To require defendant to account on that ground, they 
 should come in and swear that their judgments are unsatisfied, and it should 
 appear that the defendant had notice of their demands within the year; after that, 
 ■without notice, he would not be liable as administrator, and the creditors would 
 be left to their remedy against the distributees. [*o01] 
 
 Administration ought in no case to be granted, but to kindred or creditors, or on 
 their application, and where there ai-e neither, the Ordinary is only authorized to 
 grant administration ad colligenda bona. [*503] 
 
 Heard at Coosawhatchie, February Term, 1836, before Chancellor 
 Harper, who delivered the following decree : — 
 
 On the 2d of August, 1816, administration was granted to the de- 
 fendant, James T. Buckner, of the estate of Hance M'Culloch, then lately
 
 382 SOUTH CAROLINA EQUITY REPORTS. [*499 
 
 deceased, whose estate was appraised at more thn.n $12,000. Ho con- 
 tinued in tlie administration until tlie — of July, 1821, when his adminis- 
 tration was revoked on the application of his sureties. In 1830, adminis- 
 tration de bonis non of Hance M'CuUoch's estate, was committed to 
 David C. Campbell, who renounced in the same year ; and in December, 
 1833, administration de bonis non was committed to the plaintiff. The 
 *^om ^^'^ ^^ ^^^ ^^^ account* of the estate of Hance M'CuUoch, iu the 
 -■ hands of the defendant. 
 
 Defendant, by his answer, admits the facts stated with regard to the 
 grant of the several administrations, and the revocation of his own. He 
 states, however, that he paid off all the debts of the intestate, and 
 accounted before the Ordinary. He states that Hance M'Culloch left 
 only two children, or distributees, to wit : a son named Thomas B. 
 M'Culloch, and a daughter named Elizabeth, who was the defendant's 
 wife ; that on the 4th of March, 1816, the said Thomas B. M'CuUoch, by 
 deed, assigned to the defendant all his interest in his father's estate. 
 Defendant claims that having paid off all the debts, and being himself 
 entitled to the whole estate, in right of his wife, and under Thomas B. 
 M'Culloch, deceased, he is not liable to account. If the case made by 
 the answer were sustained, there could be no doubt that he would be 
 entitled to a decree. The Court would not do such a thing as to compel 
 a defendant to account for au estate which he would be forthwith entitled 
 to receive back. 
 
 The execution of the deed of Thomas B. M'Culloch, was admitted, but 
 evidence was offered to show it to be fraudulent. This testimony was 
 objected to on the part of defendant, and the objection sustained by the 
 Court. The transaction was a final administration of the estate, so far 
 as Thomas B. M'Culloch was concerned. If it was a fraud on his credit- 
 ors, the deed might still be good, as between the parties, and none but 
 his creditors could impeach it. If it were obtained by a fraud practised 
 on Thomas B. M'Culloch himself, none but himself, or his legal repre- 
 sentative, could call it in question. He is understood to be dead ; but 
 suppose he were living and did not think proper to impugn it, could the 
 administrator de bonis non avoid it on his behalf without his concur- 
 rence ? It can make no difference that he is dead ; his legal representa- 
 tive stands in his stead, and is alone competent to litigate the validity of 
 the deed. For the same reason, the will of Thomas B. M'Culloch, which 
 was said to dispose of this property, was rejected when offered. The 
 executor of that will, if au executor were appointed, or if not, an admin- 
 istrator cum testamento annexo, is the 'only proper person to sue. 
 Evidence was also offered of proceedings on a bill in equity by the wife 
 of the defendant against him for alimony, and a decree that her portion 
 *50n °^ ^^^ father's* estate, should be settled upon her, to her sepa- 
 •^ rate use. This also was objected to, and the objection sustained. 
 The object of the present suit was stated to be for her benefit, and that 
 she might be satisfied with her decree. But this is plainly unnecessary 
 and contrary to principle. If any other distributee had obtained a decree, 
 could the administrator de bonis non call the former administrator to 
 account for the benefit of that distributee? What difference does it 
 make that the distributee was the administrator's wife ? If the decree 
 was that defendant should settle the estate on her, it is implied that he
 
 *501] CHARLESTON", FEBRUARY, 1S37. 383 
 
 shall account first. What f'orl)ids her to enforce that decree? Or if tliere 
 be any defect in the directions of the decree, they may be sup|)lied l)y pro- 
 ceeding's to have it carried into effect. Tlien eviilencc was olfered to 
 show debts existing- against tiie estate of Ilaiice M'Culloch, on account 
 of which the administrator de bonis non is supposed to sue, This con- 
 sisted of certificates from the clerk's office of Colleton and Beaufort Dis- 
 tricts, of judgments against Ilance M'Culloch himself, and against the 
 defendant as his administrator, standing apparently unsatisfied on the 
 record. It was objected that these ought to be regarded as satisfied 
 from lapse of time, and so I should think. The latest judgment against 
 Hance M'Culloch, was near twenty-two years before the filing of the bill, 
 and the latest against the defendant as administrator, near nineteen years, 
 and these are circumstances to corroborate the presumption. There are 
 various I'easons M'hy the bill could not be sustained on the score of the 
 judgments, but a conclusive one is, that the judgment creditors are not 
 before the Court, nor claiming anything upon them If they were, they 
 would be required to make affidavits that their judgments were unsatisfied 
 before they would be received. The plaiiititt'is a trustee on their behalf. lu 
 the case of Stoney r. Shultz, decided by the Court of Appeals at its last 
 sitting at Columbia, the assignee of an insolvent debtor, when creditors 
 had been advertised for, objected to the distribution of the fund among 
 the creditors who were before the Court, on the ground of such judgments 
 standing apparently unsatisfied on the record. The Court held, that 
 though a trustee for all creditors, it was not his duty to go in search of 
 creditors, and that they could take notice of no creditors, but those who 
 had presented their demands duly verified by affidavit. By parity of 
 reason, if the estate were in the hands of the plaintiff, and distributees 
 were suing him, he could not claim to *retain a fund to meet those rH:5Q2 
 judgments ; he could not do so at any time after the expiration of ^ 
 the year and day. Creditors who had not within that time rendered 
 their demands, would be left to their remedies of pursuing the estate in 
 the hands of the distributees. Shall he be permitted to recover against 
 defendant, that he may hold the fund, upon a surmise that these claims 
 may be one day brought forward and established ? 
 
 It is ordered and decreed that the bill be dismissed with costs. 
 
 The plaintiif appealed on the following grounds : — 
 
 1. Because the administrator of Hance M'Culloch did not finish and 
 complete his duty as such — inasmuch as he did not pay the debts and 
 cause distribution to be made, but held the estate unadministered until the 
 administration was revoked, and thereby became liable to account to the 
 administrator de bonis non. 
 
 2. Because the decree of the Court of Equity prevented the attaching 
 of the marital rights, and until a final account, the possession by the 
 administrator of M'Culloch, was not sufficient to transfer his wife's share. 
 
 3. Because the mere allegation of a conveyance from the other dis- 
 tributee, was not a sufficient accounting for his share. 
 
 4. Because the Chancellor, instead of dismissing the bill, should, on 
 bis own principles, have retained the bill and directed that the legal 
 representative of Thomas B. M'Culloch and the judgment creditors of 
 Hance M'Culloch, be made parties. 
 
 5. Because there was no proof of any account before the Ordinary ;
 
 384 SOUTH CAROLINA EQUITY REPORTS. [*502 
 
 on the contrary, his accounts show a large inventory and only some par- 
 tial payments, and no final account was proved or pretended. 
 
 N. B. The decree is mistaken in the statement that the execution of 
 the deed of Thomas B. M'Culloch was admitted. It was admitted that 
 such a deed has been set up and alleged, and evidence was to be intro- 
 duced to show it void. 
 
 Hunt, for the appellant. 
 
 Bailey, contra. 
 
 Chancellor Harper delivered the opinion of the Court. 
 
 The mistake which is supposed to have occurred with respect to tlie 
 admission of the fact of the execution of Thomas B. M'CuIloch's deed, 
 ff it be a mistake, is one which cannot be corrected now. My notes of 
 *pin^1 the evidence were sent with the decree, and *are not now- in my 
 -^ possession. The notes were before me, however, when the decree 
 was drawn, and I am satisfied that I must have so taken it down, and so 
 understood it at the time. It is singular that evidence should have 
 been offered to show the deed to be fraudulent before its execution 
 was established. 
 
 With respect to the debts of the estate of Hance M'Culloch, which 
 are said to remain unpaid, I may remark, in addition to what is said in 
 the decree, that the existence of such debts is not alleged by the bill, and 
 consequently the defendant could not have been prepared to disprove 
 them. If, after the expiration of the year, during which he had received 
 no notice of the debts, the administrator had paid over the estate to the 
 distributees, he might plead that he had fully administered, as against 
 creditors, or an administrator de bonis non. Creditors might perhaps 
 pursue the estate in the hands of the distrubtees ; but an administrator 
 de bonis non, would be required to prove, not only that debts existed, 
 but that the administrator had notice of them within the year, before he 
 could require an account. In this case, that has been done which, ac- 
 cording to the view I have taken, is equivalent to a full administration. 
 If the creditors themselves might pursue the estate iu the hands of the 
 defendant or his wife, yet the administrator de bonis non, even if he has 
 established the existence of the debts, has certainly not shown that the 
 defendant had notice of them within the year. 
 
 I think that Ordinaries ought in no case to grant administration, un- 
 less to the kindred or creditors, or upon the application of the kindred 
 or creditors. The statutes 31 E. 3, c. 11, and 21 H. 8, c. 5, only pro- 
 vides for the granting of administration to the kindred, &c., according to 
 their propinquity. See Toll. Ex. 82, 83. Administration is also com- 
 mitted to creditors ; but when there are neither kindred nor creditors, 
 the Ordinary is only authorized to grant administration ad colligenda 
 bona — for the sole purpose of collecting and preserving the goods. — 
 When kindred applies, the ordinary must have evidence that they are 
 kindred, entitled to the administration. And when creditors apply, they 
 ought to verify the existence of their demands, not only by the produc- 
 tion of their evidence of debt, but by their own oaths. In this case, it 
 is plain the administration was not granted on the application of credi- 
 tors. It is probable that it was granted on the application of the de-
 
 *503] CHARLESTON, FEBRUARY, 1837. 385 
 
 fendant's wife. But as to her, as I have said, even if she were otherwise 
 *eii titled to it, the estate has beeu fully administered by the decree r^^cRn^ 
 in her favor. '- 
 
 If the decree in favor of the wife is to have no validity or effect what- 
 ever, then it cannot stand in the way of the husband's marital rights 
 attaching. If it is to have any validity or effect — if it be an authorita- 
 tive determination of her right to the estate derived from her father, then 
 it is certain that it may be enforced and carried into execution, by a 
 proper proceeding on her part. Directions may be supi)li(3d, if they are 
 deficient, and an account had if an account be needed. I3iit to decree an 
 an account and payment of the estate to the present plaintiff, would be, 
 in effect, to decree to him that which has already been decreed to her. 
 
 With respect to the suggestion in relation to making additional parties, 
 it may be observed, that if the plaintiff had any rights, to the decision of 
 which those parties were necessary, such a course would be proper. But 
 he has no rights, nor any standing in Court, and if such an order were 
 made, it would not be to amend the bill, but to make a new case, to 
 which he would be an improper and unnecessary party. 
 
 The decree is affirmed. 
 
 Johnston, Chancellor. I do not concur. 
 
 William. E. Perryclear, v. M. Jacobs and James Slowman. 
 
 Before marriage J. S. executed a deed to the plaintiff as trustee, by which he settled 
 ou his intended wife, a legacy due to her. The deed was recorded in the mesne 
 conveyance office, but not in that of Secretary of State. Suit had beeu brought 
 before marriage for the legacy, and after marriage a decree obtained in the wife's 
 favor and the funds received by the solicitor employed to prosecute the suit, who, 
 at the instance of the husband, and without the concurrence of the trustee, 
 accepted an order in favor of a creditor of the husband. On a bill by the tiustee 
 to declare the creditor's claim invalid, and to have the settlement enforced, the 
 Court decreed the trust fund recovex'ed ou the legacy, to be paid over to the 
 trustee. [*505] 
 
 The order was an assignment of the husband's interest, but he had none, having 
 previously parted with it by the settlement, which, though void, for want of 
 recording as to creditors who could reach the fund without the aid of equity, was 
 good between the parties. [506] 
 
 As the -creditors could only reach the wife's choses in action in equity, the Court 
 will, on his application to obtain the fund, make a settlement on the wife, or one 
 being already made by the husband, enforce that. [*507] 
 
 The husband and solicitor could not by their act change the rights of the parties ; 
 and the acceptance of the order was a nullity. [*5()8] 
 
 The wife has the right to a settlement out of her separate property, whether the 
 application be by the husband or his assignees to obtain the possession, and an 
 assignee for valuable consideration is subject to the same equity as the husband 
 [*509] 
 
 Creditors of the husband have no interest in the wife's expectancy not reduced into 
 possession, and if they trust him on the fdth of it, it is iat their peril. [*.J09] 
 
 As the Court may compel the husband, on his application for his wife's estate to 
 make a settlement, so he may of his own accoi'd make one, and that either of a 
 part or the whole of her choses ; and his creditors should not object. [*510] 
 
 In equity the husband may make an assignment of his wife's choses for her separate 
 use by parol ; and although a deed of settlement not recorded is void as a mar-
 
 386 SOUTH CAROLINA EQUITY REPORTS. [*504 
 
 riage settlement, it would operate as an assignment of his interest, and put the 
 property out of the reach of his creditors. [*51()] 
 The recovery being for the wife's separate use, the marital rights did not attach. 
 [*5K)] 
 
 Heard at Coosawhatchie, January Term, 1835, before Chancellor De 
 Saussure, who delivered the following decree : — 
 
 The bill states, that previous to the marriage of James Slowraan with 
 Sarah Oswald, a deed of settlement was executed, by which a certain 
 claim, which she had as one of the legatees of George Stevens, was con- 
 veyed to plaintiff, as trustee, for certain uses therein set forth. That the 
 deed of settlement was recorded in the office of the Register of mesne 
 conveyance in Beaufort District, but omitted to be recorded, from igno- 
 rance of the law, in the office of the Secretary of State. That no portion 
 of the legacy came into the hands of the plaintiff, but he was informed 
 recently i}y the solicitor employed before the marriage to recover 4,he leg- 
 acy from the estate of Stevens, that by a decree of this Court, a certain 
 . -, *sum of money was due plaintiff, as trustee of Mrs. Slowman. 
 J The solicitor also informed him, that he had accepted an order of 
 James Slowman, in favor of Myer Jacobs, made after the marriage, and 
 that he must retain that amount in his hands ; and that other creditors of 
 James Slowman would seek to make the legacy to Mrs. Slowman, when 
 reduced to possession, liable for the debts of said Slowman. The plain- 
 tiff states, that as the legacy has never been in the possession of said 
 Slowman, it may be considered as impounded in this Court, being in the 
 hands of the solicitor, who recovered the same for Mrs. Slowman, from 
 the estate of Stevens ; and that the assignment of the husband, ought 
 not to prevail against the equity of the wife, more especially as the hus- 
 band had previously executed the deed, by which the right to the legacy 
 was conveyed to plaintiff, as trustee for Mrs. Slowman. That plaintiff 
 had refused to acknowledge the right of the said Myer Jacobs, to be paid 
 out of the fund now in the hands of plaintiff's solicitor in the suit under 
 which the legacy was recovered. That as the marriage deed was re- 
 corded in the office of the district in which all the parties resided, and 
 had been drawn up by the gentleman at the bar, then and now the attor- 
 ney, solicitor and agent of the said Myer Jacobs, as well as of the said 
 Sarah Slowman, this ought to be considered as notice of the existence of 
 the deed of settlement. The bill, therefore, prays that the claim of Myer 
 Jacobs may be declared invalid, and that James Slowman may be or- 
 dered to make a sufficient settlement of his wife's property. 
 
 The answer of James Slowman, admits the execution of the marriage 
 settlement, and that he subsequently drew the order on the solicitor, who 
 had recovered the legacy for Mrs. Slowraan, in favor of Myer Jacobs, as 
 before stated. That he did not mean thereby to defraud his wife and 
 children, or to defeat their rights under the deed, but that having been 
 informed that the deed was void, for want of being fully recorded accord- 
 ing to law, he thought himself at liberty to draw the order he did, on the 
 fund in favor of one of his creditors. That he is willing to do justice to 
 his creditors as far as in his power, and also to his family, as the Court 
 may order and direct. 
 
 The answer of Myer Jacobs insists upon his rights under the order 
 drawn by James Slowman on the solicitor, who recovered the legacy in
 
 *505] 
 
 CHARLESTON, FEBRUARY, IS'Sl . 387 
 
 question, wliich was accepted by him. The answer *clenies any r^rcc 
 notice of the deed of settlement, and insists that the same not L 
 being duly recorded, is void as to creditors. 
 
 Tlie facts appear to be, as stated in the proceedings, and u[)0!i tliem 
 the question arises, whether the order of the husljand, in favor of Myer 
 Jacobs, to pay a debt of his own, on the solicitor who had recovered the 
 legacy to JNlrs. Slowman and held the fund in his hands, and which order 
 the solicitor has accepted, is such an assignment of the wife's equity, as 
 will transfer to the said creditor a right to be paid out of the fund, to the 
 prejudice of the wife and children. The uses and trusts expressed in the 
 marriage settlement were, that the trustee should permit the said Sarah 
 Oswald, and her assigns, to receive and take the rents, wages, profits and 
 emoluments, and increase of the said legacy, to her sole and separate use 
 and Ijenelit, during her natural life, free from the control, debts or en- 
 gagements of her intended husband, James Slowman, and her receipt to 
 be a sufficient discharge to said trustee ; and upon her death in the life- 
 time of the said James Slowman, then the trustee should assigu and 
 transfer tlie said legacy or bequest, and the proceeds from it, to and 
 among the children of the said Sarah Slowman. 
 
 The question, as above stated, is whether under the circumstances of 
 the case, the order drawn by James Slowman, the husband of said Sarah, 
 the legatee, on the solicitor who recovered the legacy from the estate of 
 Stevens, is such an assignment of his interests iu the legacy bequeathed 
 to his wife, as vested an interest in the assignee, to the prejudice and 
 rights of the wife and children, under the deed of marriage settlement ? 
 This order was an informal mode of assigning any interests which the 
 husband might have in the legacy, but as there is no particular mode 
 prescribed by law, for ti'ansferring such an interest, I am of opinion that 
 it may be considered well enough to carry whatever interest the husband 
 had in the legacy, to the extent of the order. The question then arises, 
 what interest had the husband in the said legacy ? If there had been no 
 marriage settlement, the husband would have had such an interest therein, 
 as to have been able to assign the same, and if the assignee could have 
 obtained the interest assigned, without coming to this Court for its aid 
 in procuring the fund, he would be able to hold it. But if he were 
 oblisred to come to this Court for its aid, that would not be furnished 
 without a Y)i'oper provision for the wife out of the fund. In this case, how- 
 ever, *there was a marriage settlement, duly executed before the rt.e.f\*7 
 marriage, by which the husband had joined in conveying to a '- 
 trustee, this legacy then unrecovered, to the sole and separate use of the 
 wife, free from his control of debts, and after her death to her lawful 
 children. By that instrument the husband parted with all the rights and 
 interests which he might have acquired by the marriage, and of course 
 the right of transferring or assigning any iu the legacy in question, to his 
 creditors. It is, however, argued, that the marriage settlement, not hav- 
 ing been recorded, according to the ])rovisions of the statute, the same is 
 void, and that the creditors of the husband have a right to avail them- 
 selves of the defect, and obtain payment of the d(!l)ts due to them out of 
 the fund. There is no doubt, that the non-recording the instrument ac- 
 cording to law, avoided the same as to creditors, and they are at liberty 
 to enforce their legal processes as far as the same could be used. But a
 
 388 SOUTH CAROLINA EQUITY REPORTS. [*507 
 
 power to enforce their legal remedies would not enable them to touch a 
 legacy, or money, in the hands of an attorney or solicitor; an execution 
 could not be levied on it. Then it can be reached only by application to 
 this Court, on the equitable rights of the parties. Now, if we examine 
 these, it appears that the husband had parted with all the interests he 
 might acquire to the legacy in question, by executing a marriage settle- 
 ment to a trustee for the benefit of his wife and children. That instru- 
 ment was void as to creditors for want of due recording ; but it was valid 
 as between the parties. The husband was bound by it, and however his 
 creditors might lay hold of the fund, if they could get at it by legal pro- 
 cesses, the husband could do no act to affect it. He was not at liberty 
 to assign it to his creditors or any body else, and they could not, by the 
 order of the husband, who had parted with all his rights to the trustee, 
 acquire any power over this equity. If the solicitor, who had been em- 
 ployed to recover the legacy for the trustee of Mrs. Slowraan, had not 
 accepted the order of the husband, to be paid out of the fund in his 
 hands, the creditor, Mr. Myer Jacobs, must have come here to obtain the 
 effect of his order, and his equity would have been resisted by the equity 
 of the wife, which existed independent of the settlement. But the ac- 
 ceptance of the order by the solicitor, has in some degree changed the 
 situation of the parties, and obliged the trustee to come here for protec- 
 tion. The question arises, was the solicitor at liberty to do so ? For 
 *Finsi ^^^® purpose *of recovering the legacy he was the agent of the 
 -J trustee for the benefit of the cestui que use, and when recovered, 
 he had no authority over the fund It was at the disposal of the trustee, 
 aud should have been paid over to him who was the real employer. He 
 had no authority to change the situation of the parties by any act of his, 
 or his own position as the solicitor of the trust estate, for that of a stake- 
 holder. It was for the Court to decide what effects flowed from the non- 
 recording the marriage settlement. The act of acceptance by the solici- 
 or, was, therefore, a nullity, done no doubt with good intentions, and to 
 promote, as he thought, the purposes of justice. But he transcended his 
 powers, for it is understood he had no authority from the trustee to ac- 
 cept orders or make payments to the husband's creditors, out of the trust 
 fund in question. The acceptance, then, being put out of the way, the 
 plaintiff is entitled to a decree, directing that the fund be paid over to 
 the trustee. Should the creditor, however, be disposed to persevere in 
 his claim, he may still, perhaps, file his bill, and seek his redress against 
 the trustee and the trust fund. 
 
 It is ordered that the trust fund recovered on the legacy be paid over 
 to the trustee. 
 
 Defendant, Jacobs, appealed on the following grounds : 
 
 1. Because Slowman's order on his solicitor, in favor of Jacobs, for 
 four hundred and eighty-five dollars, was a legal and valid assignment of 
 so much of his wife's legacy, and being for valuable consideration, gave 
 the assignee a claim paramount to the rights of the trustee under the 
 unrecorded deed of marriage settlement. 
 
 2. Because the assignee is a bona fide and fair creditor, as well as a 
 purchaser for valuable consideration, without notice, and is, by the prin- 
 ciples of equity, as well as by the positive enactments of the Legislature, 
 entitled to payment from the property covered by the marriage settlements.
 
 *508] CHARLESTON, FEBRUARY, 1837. 389 
 
 3. Because, if the defendant, Jacobs, can procure redress, as the Chan- 
 cellor intimates in his decree, "by filinc: a bill ajjrainst the trustee, and Ihc 
 trust fund," the decree in this case should have been in his favor, inasinucli 
 as all the parties to be affected by such a decree, as well as the fund itself, 
 were in Court. 
 
 4. Because there is nothing in the showing of the plaintiff, to give juris- 
 diction of his case to a Court of Equity, as against the defendant, Jacobs. 
 
 *5. Because the decree is in other respects contrary to the prin- r*rf^o 
 ciples of equity, as is settled by decided cases, and contrary to ^ 
 the uncontradicted facts in the defendant's (Jacob's) answer, and ought 
 to be reversed. 
 
 TreviUe, for appellant. 
 
 A. 31. Smith, contra. 
 
 Chancellor Harper delivered the opinion of the Court. 
 
 The right of the wife to a settlement out of her separate property, 
 which is subject to the jurisdiction of this Court, is too well settled to be 
 questioned. As is said by Chancellor Kent, in Kenney v. Udal, 5 John. 
 Ch. Rep. 464, "the wife's equity attaches upon her personal property, 
 when it is subject to the jurisdiction of this Court and is the object of the 
 suit, into whatsoever hands it may have come, or in whatever manner it 
 niayhave been transferred. The same rule applies, whether the applica- 
 tion be by the husband, or his representatives or assignees, to obtain pos- 
 session of the property, or whether it be by the wife or her trustee, or by 
 any other person partaking of that character, praying for a provision out 
 of that property." An assignee, even for a valuable consideration, stands 
 in the same situation with the husband, and is subject to the same equity, 
 when he comes to seek for the wife's property. Creditors of the husband 
 have no interest whatever in the wife's expectancy, not yet reduced into 
 possession, and if they think proper to credit him on the faith of it, it is 
 at their peril. The case of Elibank v. Montolieu, 5 Yes. 737, is one in 
 which the bill of the wife was sustained against the husband and the 
 administrator of an estate of which she was entitled to a distributive 
 share, and who was also a creditor of the husband, and claimed to retain 
 the fund for the satisfaction of his debt. But the Court, not questioning 
 but that he might retain as against any right of the husband, held that he 
 was in no better situation than the husband, and decreed a settlement. 
 In Carr v. Taylor, 10 Yes. 574, a bill was sustained by the wife against 
 an administrator and the assignees of a bankrupt husband. If the hus- 
 band obtains actual possession of the property, it is out of the reach of 
 the Court ; but while it is within the control of the Court, it will enforce 
 the right of the wife. 
 
 But what the husband may be compelled to do by the Court, *he 
 may certainly do of his own accord. He may make a settlement 
 of his wife's expectancy upon her, and creditors cannot impeach it. The 
 Court, in directing settlement, generally, orders a reference to ascertain 
 the proper settlement. But if the husband should assent, it would, as of 
 course, order a settlement of the whole property, and creditors could not 
 be heard to object to it. He may assign his wife's legacy in the hands 
 of the executor to a trustee for the wife's separate use ; and certainly I 
 YoL. 1.— 48 
 
 [*510
 
 390 SOUTH CAROLINA EQUITY REPORTS. [*510 
 
 suppose such a trustee might maintain a bill against the executor, for the 
 benefit of the wife. But in equity, an assignment may be made on suffi- 
 cient consideration, by parol merely. There can be no doubt but that 
 the equity of the wife is a sufficient consideration ; and I do not see how 
 such an assignment of the wife's legacy could be questioned. Notwith- 
 standing the decision of the Court, in the case of Price v. White, (Caro- 
 lina Law Jour. 297,) where a written: settlement was actually executed, 
 1 do not perceive how any question could arise as to the necessity of 
 recording such parol assignment. If the executor should pay over to such 
 a trustee, it would still be the wife's chose in action ; which neither the 
 husband nor creditors could touch without the aid of this Court or some 
 Court of concurrent jurisdiction, and still subject to the wife's equity, if 
 they should attempt to reach it. And no prejudice could arise to credi- 
 tors, by misleading them to credit the husband, on the appearance of 
 property in his possession, if the trustee retained the money or any other 
 property in his possession, and paid over the rents and profits to the wife. 
 If he should permit chattels to go into the hands of the husband, this 
 might, perhaps, be construed a surrender of the trust, and the marital 
 rights attach upon them, so as to render them liable to creditors. 
 
 In this case, we are to regard the defendant, Slowman, as having 
 assigned the legacy to the plaintiff. If the solicitor received the money 
 merely as the agent of Slowman, then I think it is the same thing as jf 
 Slowman himself had recovered it, and he must be regarded as having 
 reduced it into possession. But if, in consequence of an understanding 
 between Slowman, his wife, and the plaintiff, he was directed to receive 
 it, and pay it over to plaintiff for the separate use of the wife, this was, in 
 effect, an assignment to plaintiff', and the solicitor's receipt of the money 
 was plaintiff's receipt. To the plaintiff alone was the solicitor responsible 
 j^r,,-! for it, and Slovvman's subsequent assignment of a part of *the 
 -I same fund to the defendant, Jacol)s, was a mere nullity ; and this, 
 entirely independent of any effect to be given to the marriage settlement. 
 The husband has never had possession of the money, and whether in the 
 hands of the solicitor or the plaintiff", is still the wife's chose in action. 
 
 The Chancellor states that ihe solicitor received the money as the agent 
 of plaintiff. But it is supposed, in argument, that this may have been a 
 mistaken impression. But all the circumstances of the case indicate that 
 he did not act merely as the agent of the husband. He was the solicitor 
 of the wife in the suit for recovering the legacy before the marriage, and 
 when, after the marriage, the husband became a party to the suit, he con- 
 tinued the solicitor of husband and wife. As soon as he received the 
 money, he advised the plaintiff of it, and, as it was agreed at the hearing, 
 paid over the principal part of the fund. How is it possible to account 
 for this, but by such an understanding as I have supposed? The deed 
 itself, however void it may be as a marriage settlement, and though we 
 give it no greater effect than if it had been a mere verbal agreement in 
 consideration of marriage, yet furnishes plenary evidence of the under- 
 standing and agreement of the parties, to assign the legacy to plaintiff". 
 It shows that the solicitor received it for the plaintiff", and that he is the 
 proper person to maintain the suit for it. It is possible that the money 
 might have been recovered of the solicitor by a different proceeding. 
 But the plaintiff is entitled to have the rights of his cestui que trust
 
 *511] CHARLESTON, FEBRUARY, 1837. 391 
 
 declared, as against the husband and his assignee, Jacobs. lie comes 
 here properly, to give effect to the assignment. 
 The Chancellor's decree is therefore aiSrraed. 
 
 Chancellors De Saussure and Johnson, concurred. 
 
 Chancellor Johnston, duhitante. 
 
 Elizabeth Gray, Administratrix of John H. Jenkins, and Others, v. 
 Charles Givens, and Others. 
 
 In no cnse, unless aided by other circumstances, will an ouster of a joint tenant be 
 
 presumed from lapse of time, under a period of twenty years. [*51"] 
 Husband decreed to elect to hold his deceased wife's lands as tenant by the curtesy, 
 
 or to take under the statute of distributions. [*513] 
 In analogy to the statute of limitations, the time which the party to be affected was 
 
 under a disability, is to be deducted from the lapse of time which is to raise a 
 
 presumption of title against him. [*514] 
 
 Heard at Beaufort, February Term, 1836, before Chancellor Harper, 
 who delivered the following decree : — 
 
 The only object of the bill which it is necessary to consider, is to obtain 
 partition of a tract of land of which Joseph John Jenkins, *de- r^Kr-ic, 
 ceased, is admitted to have been seized at the time of his death. L 
 The bill also claimed a number of slaves, and this seemed the more mate- 
 rial part of it. But this claim was abandoned, being manifestly unfounded, 
 and, as it seemed to me, in some degree vexatious. Defendants had pur- 
 chased the interests claimed by the plaintiffs in the slaves, for what 
 appeared to be an adequate and full consideration, and received a release; 
 though this was charged by the bill, to have been obtained fraudulently 
 and for a grossly inadequate consideration. The bill was dismissed by 
 consent as respects the plaintiff, Joseph Jenkins, so that there only 
 remain the plaintiffs, Elizabeth Gray, formerly the wife of John H. Jen- 
 kins, and Benjamin P. Jenkins, her son by the said John H. Jenkins, and 
 the only child of that marriage. 
 
 The said Joseph John Jenkins died in the year 1804, leaving his wife, 
 Martha Jenkins, afterwards the wife of the defendant, Charles Givens, 
 entitled to one-third of the tract of land in question, under the statute 
 of distributions, and three children, Joseph, James and John H. Jenkins, 
 <'the latter the husband and father of the plaintiffs,) each entitled to one- 
 third of two-thirds. James is since dead, intestate and without issue. 
 Mrs. Martha Jenkins went into possession of the land, and continued in 
 possession till her marriage with the defendant, Charles Givens, and she 
 and her husband remained in possession, having the exclusive use and 
 enjoyment, until her death in 1832. Defendant, Givens, has remained in 
 possession ever since. Plaintiffs claim, in the right of John H. Jenkins, 
 the share to which he was entitled by inheritance from his father, one- 
 third of the share of James Jenkins ; and, if the land be subject to par- 
 tition, the infant plaintiff is entitled to one-third of two-thirds of his 
 grandmother's interest, she having left a husband and two other children. 
 
 Plaintiffs pray that defendant, Givens, may elect either to hold his
 
 392 SOUTH CAROLINA EQUITY REPORTS. [*512 
 
 deceased wife's share of the land for life, as tenant by the curtesy, or that 
 partition may be made of it, according to the act of distributions. De- 
 fendant relies on the length of his possession to maintain his title to the 
 land. It is agreed that John H. Jenkins, plaintiffs' intestate, came of 
 age on the 3d February, 1818, and that from that time to the filing of 
 the bill (Sept. 1834), more than sixteen years had elapsed, during which 
 defendant was in exclusive possession. There is no doubt but that the 
 possession of one tenant in common is the possession of the other, and 
 *F;iq-i that his possession *will not be adverse, so as to admit the opera- 
 -' tion of the statute of limitations, without an ouster of the co- 
 tenant. But it is not necessary that there should be an actual turning 
 out to constitute an ouster. Whatever is sufficient to give the co-tenant 
 notice, that the party in possession claims exclusively for himself and in 
 his own right, will, I think, be a sufficient ouster. And if there were 
 circumstances to show that plaintiff's intestate had such notice, I should 
 think defendant's title matured by the statute. But there are no circum- 
 stances beyond the naked fact of possession. No doubt an ouster may 
 be presumed, from the mere fact of a very long exclusive possession, as 
 in the case of Fisher v. Prosser, Cowp. 217. Where one tenant in com- 
 mon had been in possession exclusively, receiving the rents and profits for 
 about forty years (double the time required for the English statute to 
 run). Lord Mansfield instructed the jury, that from the length of posses- 
 sion they might presume an ouster. It may be, that if this case were 
 before a jury, it might be within their discretion to find an ouster. But 
 I cannot venture to exercise an arbitrary discretion. If I could, I should 
 incline to exercise it in favor of the defendant. I must adopt some rule, 
 and what shall it be ? Twelve, sixteen, or eighteen years ? I can think 
 of no other than that bar which is made to quiet almost every other claim 
 and give efficacy to long possession — the lapse of twenty years. As is 
 said in Riddlehoover v. Kinnard, 1 Hill Ch. Rep. 378, "the lapse of 
 twenty years is sufficient to raise the presumption of a grant from the 
 State, of the satisfaction of a bond, mortgage or judgment ; of the grant 
 of a franchise, or the payment of a legacy, or almost anything else that 
 is necessary to quiet the title to property." See also Hutchinson v. No- 
 land, 1 Hill, 222. But in no case, unless aided by circumstances, have 
 such presumptions been made on a possession of less than twenty years. 
 I must, therefore, declare the plaintiffs entitled to partition of the land 
 in question, but upon all the circumstances of the case, I think they must 
 pay the costs. 
 
 ^ It is therefore ordered and decreed, that a writ of partition issue, to 
 divide the land in question ; and that the commissioners allot to the plain- 
 tiffs, Mrs. Elizabeth Gray and Benjamin P. Jenkins, such portion of the 
 said land as their intestate, John H. Jenkins, was entitled to by descent 
 from his father, Joseph J. Jenkins, and his brother, James Jenkins ; that 
 *51-ll ^^^® defendant, Charles Givens, *elect to hold as tenant by the 
 curtesy, such portion of the said land as his deceased wife was 
 entitled to, or that the same be divided in pursuance of the statute of 
 distributions ; and that if he shall elect to take under the statute, the 
 commissioners allot to the plaintiff, Benj. P. Jenkins, one-third of two- 
 thirds of the said portion of land. Plaintiffs to pay costs. 
 The defendant appealed on the grounds : —
 
 *K 
 
 514] CHARLESTOxN-, FEBRUARY, 1837. 393 
 
 1. Because the Chancellor decides that near seventeen years peaceable 
 possession by the defendant, Charles Givens, of the tract of land, did not, 
 under the circumstances, give. him a sufficient title. 
 
 2. The decree is, in other respects, contrary to equity and the evidence. 
 
 A. M. Smith, for appellant. 
 TreviUe, contra. 
 
 Chancellor Harper delivered the opinion of the Court. 
 
 The Court is of opinion that the decree in this case must be affirmed. 
 There is no difference of opinion as to the length of time which is neces- 
 sary to raise the presumption of an ouster by one tenant in common of 
 his co-tenant. It is urged that the possession of the defendant, during 
 the minority of John H. Jenkins, ought to be taken into account in com- 
 puting the lapse of time, or that it is a circumstance to strengthen the 
 presumption arising from the sixteen years' possession, after he came of 
 age. I think it has not before been questioned, but that the time during 
 which the party to be affected has been under a disability, must be 
 deducted in computing the lapse of time, in analogy to the statute of 
 limitations. Such was the case of Riddlehoover v. Kinnard (1 Hill's 
 Ch. Rep. 375), relied upon on the part of defendants. The rights of the 
 parties, who were infants when possession was taken of the property, 
 were saved by the decree. Such was the case of Henry v. Stuart and 
 Means, 2 Hill, 328. The decisions have been numerous and the practice 
 habitual, and I am not aware of any doctrine or decision to the contrary. 
 If it were otherwise, the consequence might follow which was suggested 
 by the plaintiff's counsel. If the possession were taken in the very early 
 infancy of the other party, the title might be matured before his arriving 
 at age, and before *the statute of limitations had begun to run. r^j-ci^ 
 So in the case of successive minorities. The evils complained of, L 
 or apprehended from this source, in keeping titles indefinitely suspended, 
 would be effectually remedied by such a construction. But this time 
 might as well be taken directly into account, as to serve for strengthening 
 the presumption arising from a subsequent possession of less than twenty 
 years. The decree is affirmed. 
 
 Chancellors Dk Saussure, Johnson and Johnston, concurred. 
 
 Elias Horry and Rev. Paul Trapier, Trustees of Mary A. and 
 James F. Heyward, v. Dr. Jos. Glover, Mrs. E. Glover and 
 John Eraser, Executors of J. Heyward Glover, deceased, and 
 Others. 
 
 A remainder- man may sustain a bill in equity against the tenant for life for the 
 
 specific delivery of slaves. [*516] 
 On a question as to identity of slaves, it is admissible to prove that the slaves in 
 
 question were called certain names and said by other negroes to belong to a 
 
 certain gang. [517] 
 The tenant for life of slaves as a trustee for the remainder-man is bound to account, 
 
 and the burthen of proof to show the increase or diminution is thrown on him ;
 
 394 SOUTH CAROLINA EQUITY REPORTS. [*515 
 
 and in default of accounting, he shall be charged with the value of such number 
 as the original stock may reasonably be supposed to have increased ; subject, 
 however, to evidence of peculiar circumstances, accident or mortality. [*520] 
 A specific bequest of property strictly consumable in the use, such as corn, wine, &c., 
 gives the absolute property, but of a flock or herd which is capable of increase, 
 the tenant for life taking the increase is bound to keep up the number of the 
 original stock. [*52]] 
 The estate of tenant for life having been divided before administration, reference 
 ordered to ascertain if sufficient property came into the hands of her son, so as to 
 make his estate chargeable for the stock, &c. [*521] 
 Limitations of trusts of personalty are the creatures of equity, and it is by regard- 
 ing the tenant for life as a trustee for the remainder-man, that equity takes 
 jurisdiction to compel the execution of the trust to the remainder-man. And not 
 only the personal representative of the tenant for life, but every volunteer and pur- 
 chaser with notice, are bound by the trust. [*523] 
 According to the general rule laid down in Sarter vs. GordDn, that a bill will lie for 
 specific delivery of slaves, the remainder-man may sustain a bill against the 
 representatives of a tenant for life, or volunteers under her, to compel delivery of 
 slaves bequeathed to him. [*523] 
 Where one states that his slaves have come into possession of another who refuses 
 
 to deliver them, he states a sufficient ground for equity jurisdiction. [*524] 
 But if it should appear that he contracteil for slaves generally, with no view to their 
 qualities, or to any individuals, but as mere merchandize, the remedy is at law. 
 [*52.3] 
 When an issue will be ordered. [*525] 
 
 The interest to disqualify a witness must be present and certain, and not uncertain 
 and contingent : And, therefore, where a tenant for life of slaves loaned them to 
 her son, and on her death her estate, excluding these slaves, was divided between 
 her son and daughter, on a bill by the remainder-men against the administrators 
 of the son, for specific delivery of the slaves, the husband of the daughter is a 
 competent witness for the plaintiflFs, to prove the identity of the slaves ; although 
 if the plaintiffs should fail to identify the slaves, and the defendants to prove that 
 the stock bad perished, the estate of the tenant for life might be made liable for 
 the value, and the witness required to contribute. [*52.5] 
 On the qustion as to the identity of slaves, where the original stock are all dead, 
 hearsay coming from negroes, that those claimed are descendants, is admissible. 
 [*527] 
 The general rule is, that if a trustee wrongfully refuses to deliver on demand, he is 
 liable if the property afterwards perishes : and therefore, defendant, claiming as 
 a volunteer under-tenant for life, was held liable to remainder-men for slaves, who 
 died since the tiling of the bill to compel delivery. [*528] 
 
 Colletoa District, May Term, 1836. 
 
 The following decree presents a full statement of the case : — 
 
 Harper Chancellor. Daniel Hey ward, by his will, dated in 1178, 
 gave to his brother Thomas, in trust for his (testator's) wife, for life, his 
 plantation, known by the name of Springfield, together with all the 
 negroes, plantation utensils, stock of cattle, hogs and sheep ; also, 
 twenty head of cows and calves, from his plantation called White Hall. 
 All the residue of his estate he gives to his brother, Thomas Heyward. 
 The testator died soon after, and his widow, Mrs. Margaret Heyward, 
 went into possession of the property devised in trust for her. Mrs. 
 
 Heyward, in the year -, married Wilson Glover. The bill charges 
 
 that, during the coverture, she was in possession of all that estate she 
 derived from her first husband, Daniel Heyward's will, as her own and 
 separate estate, and enjoyed the same free from the let, control, or Inter- 
 erence of the said Wilson Glover, and continued in like manner, in pes-
 
 *515] CHARLESTON, FEBRUARY, 1837. 395 
 
 session after his death, (she haviiiG^ survived him,) until her own death in 
 1832. 
 
 Thomas Heyward, the residuary devisee of Daniel Heyward, by his 
 will, gave his whole estate, real and personal to his wife, Mrs. Eliza Hey- 
 ward, and she by deed executed in 1832, released *to the plaintiffs, r-j.-,'/, 
 Elias Horry and Paul Trapier, all the reversionary interest which ^ ''^" 
 Thomas Heyward took in the personal estate of Daniel Heyward after 
 the life estate of Mrs. Glover, in trust for the plaintiffs, Mary A, and 
 James F. Heyward. 
 
 The bill charges, that the slaves who constituted part of Mrs. Glover's 
 life estate, were by her, in her lifetime put into possession, by way of 
 loan, of her son, John Heyward Glover, now also deceased, and at his 
 death came into the possession of his executors. The objects of the bill 
 is to obtain the delivery of the slaves who were given by Daniel Heyward 
 to his wife, afterwards Mrs. Glover, for life, or their descendants, and to 
 have au account of their hire from the death of Mrs. Glover ; also to 
 have an account of the cattle, &c. The executors of John Heyward 
 Glover, the surviving executors of Wilson Glover, and the administrator 
 of Mrs. Glover, are made parties to the bill. 
 
 The first question made, was whether the bill would lie, as the plaintiffs 
 have adequate remedy at law, by an action of trover or detinue. Inde- 
 pendently of considering the tenant for life as a trustee, bound to account 
 and therefore amenable to this Court, it has been determined by the 
 Court of Appeals, in the case of Sarter v Gordon, (ante 121,) decided 
 at Columbia, that as a general rule, a bill may be maintained for the 
 specific delivery of slaves. Some exceptions are stated, but this case 
 does not come within the exceptions, but within the express reason of the 
 rule. Entertaining jurisdiction for this purpose, the Court will do com- 
 plete justice between the parties, in relation to the whole property and 
 the matters of account. 
 
 Then it becomes merely a matter of evidence to identify the slaves who 
 are subject to the disposition of the will. 
 
 By the inventory and appraisement of the estate of Daniel Heyward, 
 made in 1783, it appears that there were then on the Springfield planta- 
 tion, twenty-two slaves, who are named. It is not surmised that any of 
 the original stock are now in existence, but those now claimed, are claimed 
 as the descendants of the former. 
 
 The testimony chiefly relied on by the plaintiffs, is that of the witness, 
 John Ferrabee. Tliis witness thinks he heard John Heyward Glover 
 say, the Heywards had some claim on negroes after his mother's death. 
 Witness " thought they were the negroes that he said belonged to his 
 mother. He said, one woman at Wi-ightfield, named Fanny, belonged to 
 his mother. Fanny is *now alive, and has, he believes, fourteen rj^-iir 
 children and grandchildren. — Xancy and her children, Solomon, L 
 Yenus, Phillis, and November — one of these mentioned, died last fall, 
 aged about four years — Sara, Robert, June, Stephen, Adam, June, Affie, 
 Sylvia. Sally died last week, she was about four years old. Witness 
 says he recognizes some of the negroes of H. Glover's estate, by the 
 name of Springfield gang ; has heard the negroes call them so, and no 
 one else. Fanny and her children and grandchildren are a portion of
 
 396 SOUTH CAROLINA EQUITY REPORTS. [*517 
 
 them ; also, Charley, Sampson, Joe, Tom, Harriet, Monday, Tirah, 
 Rachel, Mary Ann, Aceabee, Hannah, Toney, Polly and children." 
 
 An objection was taken to the last part of the witness' testimony — that 
 the negroes called these the Springfield gang — as being hearsay from 
 slaves. But it does not strike me in that point of view. The effect of 
 the testimony does not depend on the credit to be given to the slaves 
 whose declaration are testified to. The fact that the slaves did call them 
 so, depends on the credit of the witness who was examined. Then the 
 inference is drawn from that fact, that it cannot be conceived why the 
 slaves should have called them so, if they were not so in fact. It is as if 
 the witness, attempting to identify them by their names, had testified that 
 the slaves called one Fanny, or another Toney. This could not be called 
 hearsay. Another portion of the testimony of the witness, with respect 
 to what his brother told him, I consider inadmissible. 
 
 This testimony is, I think, entitled to its weight but it is very strongly 
 corroborated by other circumstances. On the part of the defendants 
 there is opposed to it the testimony of the witness, Richard Y. Carey, 
 (who was examined, however, on the part of the plaintiffs.) The testi- 
 mony of this witness was given in a very confused and precipitate manner, 
 and I may not have taken it down with perfect accuracy. The amount 
 of it was, that he was in the service of John Heyward Glover, managing 
 his plantation, from 1810 to 1821 ; that there were a certain number of 
 slaves, (eight altogether,) known as the Springfield gang, who were first 
 removed from Springfield, to a place called^the Old Store, and thence to 
 Mr. Glover's plantation of Wrightfield ; these were mostly superannuated 
 and are dead, without children. In this last particular he is corroborated 
 by Ferrabee. But thus far his testimony is not inconsistent with that of 
 Ferrabee. There may have been other Springfield negroes besides those 
 5i;cio-] brought from the Old *Store to Wrightfield, unknown to the wit- 
 -l ness. Indeed, he says Col. Glover did not pretend to point out 
 all the negroes that were to go to Judge Heyward's family after his 
 mother's death. But he adds that in 1813, he, with the assent of Col. 
 Glover, gave to James Heyward a list of those slaves, then amounting to 
 eight. In this there seems to be some contradiction. With respect to 
 Fanny, the witness is more explicit. He states that she was not one of 
 the Springfield negroes. He knew her at about the age of nineteen, 
 when she was brought from Wilson Glover's Swamp plantation. This I 
 suppose to be his reason, for not thinking her one of the Springfield 
 negroes, in addition to his never having heard her so called. This seems 
 to be in some degree contradictory of Ferrabee, but it is not absolutely 
 inconsistent. She may have been sent from Springfield to the Swamp, 
 and thence to Wrightfield. If there were more direct contradiction, 
 however, I think the circumstances give the preponderance to Ferrabee's 
 testimony. First, the intrinsic improbability of such a gang of twenty- 
 four slaves, pretty well apportioned as respects men and women, becom- 
 ing extinct during a lapse of fifty-three years; and defendants indicate no 
 other slaves as being descendants of the stock in question. 
 
 Mr. Nathaniel Heyward, who was examined as a witnesss, stated that 
 he never heard of the Springfield gang of negroes having died, or of any 
 extraordinary decrease ; and from his opportunities of knowing, this 
 could hardly have occurred without his having heard of it.
 
 *518] CHARLESTON, FEBRUARY, 1837. 397 
 
 The testimony of Mrs. Hamilton, was, that about the time referred to 
 by Carey, (twenty-five years ago, which must have been about 1810, or 
 1811,) Mrs. Glover, passing by the Springfield plantation, spoke of the 
 gang of slaves as then existing on it. 
 
 But more satisfactory than these is the testimony of Mr. John Huger. 
 He states, that a short time before the death of Heyward Glover, he saw 
 a list of the negroes, in the handwriting of Heyward Glover, which was 
 sent by him to his mother, with an offer to deliver them up. These 
 negroes the witness heard Wilson and Mrs. Glover speak of, as connected 
 with the will of Daniel Heyward. Mrs. Glover offered them to the wit- 
 ness for her life, but he declined receiving them. According to the list, 
 they then amounted to twenty-five or thirty. He believes the negroes 
 are now at Wrightfield. Mr. Huger identifies no particular negroes, but 
 the *number stated by him agrees very well with the number now r^icriQ 
 claimed. It was agreed, however, at the hearing, that the estates ^ 
 of Wilson Glover and Mrs Glover, have been divided between their 
 children, Heyward Glover and Mrs. Huger, (wife of John Huger,) and 
 on that division the negroes at Wrightfield, (by which I understand the 
 negroes now in question,) were not divided or brought into account. 
 Now, connect this with the testimony of Mr. Huger, and can I possibly 
 avoid making the inference that they were reserved from division on the 
 knowledge of the parties, that Mrs. Glover's interest in them had termi- 
 nated with her life, and that they were not sul)ject to division ? Nor is 
 this inference weakened by the testimony on the part of the defendants, 
 to show that there had been an unusual mortality among the Springfield 
 negroes. A paper was produced, in the handwriting of AVilson Glover, 
 purporting to be an account of the slaves in 1783, and having the word 
 " dead " written opposite to many of their names. I do not understand 
 this to purport that they were then dead. The paper is an account of 
 slaves then removed from the Springfield plantation. I conclude the 
 memorandum " dead," to have been made afterwards ; perhaps at various 
 times, as the deaths occurred. If so, it affords no evidence that the gang- 
 did not increase. No doubt all the original stock are dead now. The 
 births of two children are noted in 1*783. This seems to have been done 
 at the time of making the list, and I suppose they were then born, but 
 the paper does not purport to give any account of births afterwards. 
 But, if all so marked were dead at that time, it may very well be that the 
 residue have increased to the number now claimed. Nor do I attach any 
 importance to the testimony of the witness, Broughton, that heard Mrs. 
 Judge Heyward say she believed they were all dead, or of Mrs. Jane 
 Glover, that she heard of the negroes having been removed to Pedee, and 
 of great mortality among them there. It is plain that there must have 
 been some unusual mortality among them, or their numbers would have 
 been much greater than they are. Within the same time many stocks of 
 slaves have doubled or trebled their numbers, while the number now 
 claimed is about the same as that of the original stock. 
 
 I think, on the evidence, the plaintiffs' claim must be sustained. But 
 I think there is much force in the argument of counsel, that the tenant 
 for life was trustee for the remainder-man, and the burden* is on r^itcnrt 
 her legal representative to account. For many purposes the L " 
 tenant for life is regarded as trustee. He is bound to make an iuventory
 
 398 SOUTH CAROLINA EQUITY REPORTS. [*520 
 
 of the property, that the remainder-man may be able to identify it; and 
 by parity of reason, it seems to me that in the peculiar case of slaves, 
 where the increase goes to the remainder-man, he is bound to keep an 
 account of the increase. Certainly the defendants have not shown the 
 stock of slaves in question to be extinct. Then in default of accounting, 
 how shall the estate of the tenant for life be charged ? I can conceive of 
 no other method than this, to charge it with the value of such a number 
 of slaves as the original stock may reasonably be supposed to have in- 
 creased to — subject, to be sure, to evidence of any peculiar circumstances, 
 accident or mortality, which may have prevented increase. It seems to 
 me that it would be to the disadvantage of defendants to be charged in 
 this manner. Plaintiffs, however, claim no more than the negroes speci- 
 fied, and to those I think they are entitled. 
 
 Plaintiffs also claim the value of one or two of the slaves, who died 
 after the termination of the life estate, and before the hearing. In the 
 
 case of , decided by the Court of Appeals at Columbia, at its last 
 
 sitting, it was held, that in an action of trover, where one of the slaves 
 had died in possession of defendant, the measure of damage was the hire 
 up to the death, or the interest on the value from the time of the conver- 
 sion ; but the jury were not bound to give the value of the slave when 
 living, unless there were reasons to believe the death, in some manner, a 
 consequence of the defendant's act. Upon further examination, I have 
 some reason to doubt, whether that case was sufficiently considered. But 
 as it is, I must be governed by it, and this claim must fail. 
 
 Plaintiffs are also entitled to hire of the slaves from the 1st of January, 
 1833, until they shall be delivered. 
 
 Evidence was offered of the value of the hire, to save the necessity of 
 a reference ; in which course I understood both parties to acquiesce. 
 There were shown to be fifteen working hands, and the average value of 
 hire for the years in question was fixed at $60 per annum, making $900 
 per annum. 
 
 Plaintiffs are also entitled to the value of the stock of cattle, hogs and 
 sheep. By the inventory of 1783, it appears that there were then on the 
 Springfield plantation, 183 head of cattle, 30 hogs, and 61 sheep. The 
 *cQi-| value of the cattle was agreed to be $5 per head ; *but there was 
 
 ^ -J no evidence to that of the hogs and sheep. The ground was taken 
 that a bequest for life of this sort of property, which was said to be con- 
 sumable in the use, gives the entire property. But this is contrary to 
 the well-settled rule. A specific bequest of property, strictly consumable 
 in the use, such as corn, wiue, &c., gives the absolute property. But of 
 a flock or herd, which is capable of increase, the tenant for life, taking 
 the increase, is bound to keep up the number of the original stock. The 
 principle is explained by Judge Nott, in the case of Devlin v. Patterson, 
 referred to and recognized in Robertson v Collier, 1 Hill, Ch. R. 370. 
 Such is the rule of the civil law, from which ours is taken. 1 Doraat B. 
 1, Tit. 11, Sec. 3. The case of Randall v. Russell, 3 Meriv. 190, which 
 was relied on, was one in which the stock of cattle, &c., was held to have 
 been given absolutely by the terms of the will. 
 
 Another question arises, what estate is to be charged with these ? 
 There is no showing that the cattle went into the possession of John 
 Heyward Glover. I cannot charge the estate of Wilson Glover with them,
 
 *52l] CHARLESTON-, FEBRUARY, 1837. 399 
 
 contrary to the plaintiff's own allei^ation, that Mrs. Glover retained her 
 whole ])roperty as a separate estate. The estate of Mrs. Glover is cer- 
 tainly liable, but her administrator answers, that he has received no 
 effects of his intestate, and has been informed that she died possessed of 
 no effects besides some articles in her personal use of little value. It is 
 true that it was agreed that the estates of Mrs. Glover and Wilson Glo- 
 ver, were divided between Heyward Glover and Mrs. Huger, but there 
 was no evidence as to what her estate was. I may conjecture that there 
 was an estate of Mrs. Glover, divided between her children before admin- 
 istration. If Heyward Glover did, in this way receive enough of his 
 mother's estate for the purpose, it might be followed in the hands of his 
 representatives, and rendered liable for a moiety of the demand. But there 
 was no proof of this, and I cannot decree upon conjecture. The plain- 
 tiffs may have a reference upon this matter if they think proper. 
 
 It is ordered and decreed that the defendant, Mrs. Eliza Glover, exe- 
 cutrix of John Heyward Glover, deceased, deliver to the plaintiff's the 
 slaves before enumerated, which are now in her possession, and pay for 
 the hire of slaves, at the rate of nine hundred dollars per annum from the 
 1st day of January, 1833, until the *said slaves shall be delivered, r^^roo 
 with interest on the hire of each year from the end of the year, ^ '''' 
 
 The defendants appealed on the grounds : — 
 
 1. That the plaintiffs had plain and adequate remedy at law, and, 
 therefore, equity ought not to entertain jurisdiction of the case. 
 
 2. The defendants had nothing of which to make discovery in any 
 manner relating to the case made by the bill, so that equity could not, 
 on the ground of discovery, entertain jurisdiction. 
 
 8. That Mr. John Huger was directly interested in the event of the 
 suit, and therefore his evidence is inadmissible. 
 
 4. That hearsay evidence has been admitted in the case on points in 
 which it was inadmissible, and ought to have been excluded. 
 
 5. That hearsay from negroes has been admitted, and ought to have 
 been excluded. 
 
 6. That on the facts legally yjroved, and the law applicable to those 
 facts, the decree ought to have been for the defendants. 
 
 Plaintiffs insist that, as the decree is opened by the appeal, the defend- 
 ants should account for the negroes that died since the commencement of 
 this action. 
 
 And, that the estate of Wilson Glover, should be charged with the 
 cattle, as it appeared on the evidence that he disposed of them — and that 
 they were not the separate estate of Mrs. Glover, 
 
 Petigru and Lesesne, for the plaintiffs. 
 King, for defendants. 
 
 Chancellor Harper delived the opinion the Court. 
 
 The two first grounds of appeal by defendants may be disposed of 
 together. On both the grounds taken in the decree, the jurisdiction of 
 the Court must be supported. It is admitted that during the lifetime 
 of the tenant for life of personal chattels, he is regarded as a trustee 
 for the remainder-man. But the trust is supposed to terminate with his 
 life. But this is contrary to the main purpose for which he is made a
 
 400 SOUTH CAROLINA EQUITY REPORTS. [*522 
 
 trustee. It is hardly necessary to say, that at common law, there could 
 be no limitation of personal chattels to one for life, with remainder to 
 another, and that a gift for a day or an hour, vested the whole in the first 
 -^KQo-i taker. *Executory devises and the limitations of the trusts of 
 
 "'*-' personalty, by which alone such dispositions can be rendered 
 eifectual, are exclusively the creatures of equity. It was by regarding 
 the tenant for life as a trustee, that equity took jurisdiction, for the pur- 
 pose of compelling his personal representative to execute the trust, by 
 delivering the property to the person entitled in remainder. The cases 
 cited in argument are amply sufficient to establish this. Then not only 
 the personal representative of the tenant for life, but every volunteer and 
 every purchaser with notice, on a well-known principle, are bound by the 
 trust. If, then, as the decree establishes, (and we think correctly,) John 
 Heyward Grlover was a volunteer under his mother, he and his personal 
 representative are equally bound to the execution of the trust. And if it 
 were shown that Courts of law recognize the division of personal estate 
 between tenant for life and remainder-man, this would not oust the Court 
 of Equity of its ancient and accustomed jui'isdiction. See the reason- 
 ing of the Court in King v. Baldwin, IT Johns. Rep. 384. 
 
 We think, too, that the nature of the property sought by the bill, forms 
 a ground of jurisdiction. It is for the specific delivery of slaves We do 
 not feel at all disposed to depart from the principles of the decision in 
 Sarter v. Gordon, (ante, 121,) quoted in the decree, to the reasoning of 
 which I refer It is admitted that in some particular instances, such 
 as are referred to in that case, where there are circumstances to give 
 a peculiar value to the slave, with respect to the person who seeks 
 to recover him, and to show that damages would be an inadequate com- 
 pensation, there may be a ground of jurisdiction. But it is urged, that 
 such circumstances ought to be stated and proved, before the case is taken 
 from the ordinary tribunals of the country, to which it properly belongs. 
 
 But if it were necessary to state such circumstances, I think they are 
 sufficiently stated in the present case. The slaves in question were a gift 
 to the cestui que trust of plaintiff, by a friend and relation, and were 
 received by her from the gift of another. If the Court gives that con- 
 sideration to the just and honoraljle feeling which causes a man to set a 
 peculiar value on an heir-loom, derived to him from his ancestors, and to 
 regard the damages which a jury, estimating its money value, would give, 
 as no compensation for its loss, is there less ground for its interposition 
 *524l *^° ^^^® ^^^ slaves — sentient and intelligent being — derived to 
 -^ him from a friend or ancestor, whom he may be supposed to love 
 or venerate ? Are not family slaves, who are often, and I think I may 
 say generally, attached dependants, of as much value to the feelings of 
 the owner as a piece of family plate or a family picture ? As was said 
 by the Chancellor in Fells u. Read, (3 Yes. 70:) "It would be great 
 injustice if an individual cannot have his property, without being liable 
 to the estimate of people who have not hi^ feeling upon it." It was urged, 
 that an effectual remedy was given by the late act regulating the action 
 of trover.^ But that act only provides that security shall be given for the 
 forthcoming of the slaves to answer the damages which may be recovered. 
 If the defendant will pay the damages the title of the slaves is vested in
 
 *524] CHARLESTON, FEBRUARY, 1837. 401 
 
 him. But it is on the ground of the inadequacy of damages as a com- 
 pensation that the Court interferes, 
 
 I am of opinion, however, in pursuance of the views, in Sarter v. 
 Gordon, that when a man states that his slaves has come into the pos- 
 session of another, who refuses to deliver to him, or that he has contracted 
 for the purchase of specific slaves and the vendor refuses to perform his 
 contract, he states a sufficient ground of equity jurisdiction. Any other 
 construction would render the law uncertain and impracticable. It is 
 admitted that in some cases a bill may properly lie for a specific delivery 
 — as where the slave has been born and brought up in the owner's family, 
 or has for a long time belonged to it, so that a peculiar attachment may 
 be supposed to have been formed for his peculiar qualities, which render 
 him of more value to the owner than to any one else ; or where a contract 
 has been made for a slave on account of such peculiar qualities, and the 
 object of the contract could not be obtained without a specific delivery ; 
 or, suppose a mother to be converted by a stranger, having an infant 
 child in the possession of the master, or a husband or wife to be so con- 
 verted, leaving the other in the master's possession. But how ai'e these 
 circumstances to be ascertained by evidence ? By what rule will you fi.x 
 the length of time that a slave shall have belonged to his owner, so that 
 he may be supposed to have formed a particular attachment for him ? 
 Will you go into evidence of the slave's character and qualities to deter- 
 mine whether they are such as give him a peculiar value to the feelings 
 of his owner, or to have formed a probable inducement to the purchaser 
 in making a contract for *him ? Suppose him to be one of a [-:icfr£)- 
 family of slaves still in the owner's possession, and who are reu- •- 
 dered of less value by his loss, (which is often the case,) will you fix the 
 degree of relationship — such as that of a parent or child, husband or 
 wife — which would authorize the Court to interfere ? Such a construc- 
 tion would tend greatly to litigation, and afford room for great looseness 
 of discretion. I can think of no safe or practicable rule but that already 
 expressed — that if a man's slave has come into the possession of another 
 who refuses to deliver him, or if he has contracted for specific slaves, he 
 has a right to a specific delivery. But if the contrary appears — that he 
 contracted for slaves generally, with no view to any particular individuals, 
 or if they were contracted for as merchandize, to sell again, the remedy is 
 at law. 
 
 I agree with the appellant's counsel, that when there is a complicated 
 question of title — when there is much conflicting testimony, or more espe- 
 cially when the credit due to testimony is to be weighed, a jury is the 
 proper tribunal for the trial of those questions. And if the suggestion 
 had been made below, I might perhaps have directed an issue. But it 
 was not demanded below, and at the present stage of the case, when so 
 great delay would be occasioned to the parties, and having no serious 
 reason to doubt the correctness of the conclusion to which 1 have arrived, 
 I think we are not authorized to direct it now. 
 
 The next ground relates to the admissibility of the testimony of John 
 Huger. The rule is, that to disqualify a witness, " the interest must be a 
 present, certain interest, and not uncertain or contingent. So it was 
 held that a steward was competent to prove that a fine was payable on 
 the death of the lord, although the establishment of the affirmative might
 
 402 SOUTH CAROLINA EQUITY REPORTS. [*525 
 
 render a rcadmission necessary and entitle him to a fee." 2 Stark Ev. 
 745. The record must certainly be evidence to fix or rebut his liability 
 in a future action. As observed in Cotchett v. Dixon, 4 M'Cord, 314, 
 " it is not enough that he has an interest in the subject-matter in litiga- 
 tion — it must be an interest in the event of the particular cause." What 
 is the cause at issue ? The bill states that ttie defendant, Mrs. Glover, is 
 in possession of certain slaves, which are claimed as being descended from 
 those bequeathed by the will of Daniel Heyward, which theplaintilfs state 
 *Kc>p-i they are prepared to identify *by proof. The defendant requires 
 -J . the proof to be made, and urges in defence that the stock of slaves 
 bequeathed by Daniel Heyward has perished. The testimony of the 
 witness would seem rather to be against his interest in this cause. It is 
 not disputed but that these slaves once belonged to Mrs. Glover. If 
 they are still part of her estate, undivided, he has a claim in right of his 
 wife to a moiety of them, which would be defeated by the recovery of the 
 plaintiffs. If they were divided as part of her estate, and fell to the 
 share of John Heyward Glover, his representative would have a claim 
 against the witness for contribution. In this cause then, he has no 
 interest. But it was thrown out in argument, and the Court intimated 
 that there might be just ground for the opinion, that another case might 
 be made in which he would have an interest. If the plaintiffs should fail 
 to identify the slaves, and if the defendant failed to prove that the stock 
 had perished, then the estate of Mrs. Glover might be made liable for the 
 estimated value of such a stock of slaves, she having been trustee for the 
 remainder-man, and the witness and John Heyward Glover, having divided 
 her estate, it might be pursued in their hands, if the plaintifTs should fail to 
 recover in this case. This is similar in principle to the case of Briggs v. 
 Crick, 5 Esq. N. P. C. 99 ; Duncan v. Bell, 2 Nott & M'Cord, 153; 
 Lightner and Martin, 2 M'Cord, 514, and Harth v. Johnson, 2 Bailey, 
 183, In an action for the breach of warranty of soundness of a horse or 
 a slave, the defendant's vendor may be a witness for him, though a ver- 
 dict in favor of the defendant would obviate the chance of the witness' 
 being made liable in a future action. It may be said, as in Johnson v. 
 Harth, it is true, that if the plaintiffs recover against the present defend- 
 ant, he will have no right of action against the witness, because he will 
 have sustained no damage, and therefore, it may be said that the judg- 
 ment will be of benefit to the witness by obviating the chance of his being 
 made liable in a future action. But this is not the sort of interest that 
 will disqualify a witness ; nor is it in this sense the law says the verdict 
 must be evidence for or against him. It is not like the case of an action 
 for the breach of warranty of title, in which a verdict against the defend- 
 ant would of itself be the foundation of an action against his vendor. 
 
 If the present bill should be dismissed, that would be no evidence for 
 or against the witness, in a future action to be brought against him. 
 But if the present plaintiff should succeed, it is thought the decree would 
 '^5271 '^^ evidence in the event of such an action* as has been surmised. 
 
 ■^ -^ If the plaintiff succeeds, he will have no right of action against 
 any one in respect of his present claim, because the claim will be satisfied. 
 The decree may be evidence, not as a judgment, but as a fact to make 
 out the proof of his having received satisfaction. If he had received satis- 
 faction by agreement with the defendant, this would have been equally a
 
 *527] CHARLESTON, FEBRUARY, 1837. 403 
 
 bar. If two persons were suspected of a trespass, or proved to have 
 committed it, it miii-ht as well be said that one was an incomi^eteiit wit- 
 ness for the plaintiil" in a suit a<!;ainst the other, because if he should 
 recover satisfaction of the defendant, this would be a bar to an action 
 against any one else. 
 
 The third and fourth grounds form in effect but one. In addition to 
 what is said in the decree, I may observe that even hearsay evidence may 
 be admitted on a question of pedigree, and this is in reality a (juesliou 
 of pedigree. The original stock of slaves are admitted to be all dead, 
 and the question is, whether these now claimed are their descendants ? 
 And it comes within the qualification expressed in Whitelocke v. Baker, 
 13 Ves. 514, in relation to the reception of evidence of tradition. It 
 must be from persons having such a connection with the parties, that it 
 is natural and likely from their domestic habits, that they are speaking 
 the truth. 
 
 I shall make. a few remarks on the last general ground. Admitting 
 the testimony of Mr. Huger, there can be no doubt of the credit due to 
 it. Then it is certain that at the death of Mrs. Glover, there were in the 
 possession of John Heyvvard Glover, and at the plantation of Wright- 
 field, twenty-five or thirty slaves to which the plaintiffs are entitled. It 
 is objected that plaintiffs have not sufficiently identified them. As is said 
 in the decree, no others are indicated as being those left by Mrs. Glover. 
 If, as was suggested, Heyward Glover obtained the slaves now claimed 
 by purchase from his mother, or from any other person, or in any other 
 manner, certainly it is to be supposed that it was in the defendant's 
 power to show this. The particular slaves claimed were named in the 
 bill, and the defendant put upon her defence. Failing to do so, can she 
 complain that all presumptions should be against her, and that effect 
 should be given to slight testimony for the purpose of identifying the 
 slaves. Without these circumstances, I admit the testimony of Ferrabee 
 would be very slight. I cannot doubt but that justice, though not per- 
 haps full justice, has been done by the decree. 
 
 *In considering the plaintiffs' grounds of appeal, — with respect r^cgo 
 to the claim for slaves who died since the filing of this bill, the '- 
 Court is of opinion, that the decision referred to by the decree in relation 
 to the measure of damage in an action of trover, must be confined to the 
 particular case. Certainly the general rule is as contended for on the 
 part of plaintiffs, and supported by the authorities referred to, that if 
 a bailee or pawnee, who are trustees, wrongfully refuses to deliver the 
 deposit or pledge when it is demanded, he thenceforth keeps it at his 
 own risk, and is liable for the value, if it afterwards perishes. See Story 
 on Bailm. 93, 231, and the authorities there referred to. The principle 
 seems to apply to the present case; the tenant for life, or volunteers under 
 her, being regarded as trustees. The value of these slaves must therefore 
 be a subject of reference. With respect to the second ground, I do not 
 perceive the evidence to charge the estate of Wilson Glover with the 
 cattle. The memorandum said to be in his handwriting, of their being 
 removed from Springfield, does furnish evidence of their being taken pos- 
 session of by him for his own use. The same memorandum includes the 
 slaves removed at the same time, which it is agreeil remained her sepa- 
 rate estate. The maker of the memorandum states himself to have taken
 
 404 sout;h Carolina equity reports. [*528 
 
 charge of all the property specified. There is no other evidence what- 
 ever to charge Wilson Glover's estate in opposition to the allegation of 
 the bill. A reference is ordered with respect to the slaves, who died 
 since the filing of the bill, but in every other respect the decree is affirmed. 
 
 Bona vs. Davant. 
 
 The Commissioner is only entitled to commissions allowed by the fee bill for inves- 
 ting and loaning out money under the order of Court. [*528] 
 
 In this case, by order of the Court, the Commissioner in Equity for 
 Beaufort, was directed to receive the funds arising from the sales for 
 partition, and to invest them in stock, or loan them out on proper secu- 
 rities — the interest to be paid annually, and when received, to be Invested 
 or loaned out in like manner. The Commissioner reported under this 
 order the amount of principal received by him and invested, on which he 
 charged two and a-half per cent. ; and also the amount of interest received, 
 *R9qT 01^ which he charged ten per *cent. Held, that the Commissioner 
 -' was not entitled to the commissions claimed for extra services, but 
 must be restricted to the amount allowed by law in his character of 
 Commissioner. 
 
 Margaret Lester, Administratrix of Bannister Lester, deceased, vs. 
 Hugh Frazer, Administrator of Benjamin P. Frazer, deceased. 
 
 Where a female infant before marriage entered into a settlement by which she con- 
 veyed her real estate to the uses of the marriage and the issue thereof, and died 
 during infancy, leaving a son who lived eleven years after attaining full age, with- 
 out calling the settlement in question, and died leaving issue ; on a bill by the cred- 
 itors of the son to charge the real estate derived from the mother with the payment 
 of his debts, on the ground, that the settlement was void, being made by the mother 
 while an infant: — Hdd, that at most the settlement could only he regarded as 
 voidable, and no election having been made to avoid it, the creditors had no right 
 to interfere, and the bill was dismissed. [*537] 
 
 The question whether a female infant is bound by marriage articles, by which her 
 own real estate is settled to the use of the marriage discussed, and the English 
 cases considered. [*538] 
 
 In England while it has been held that an infant wife who had accepted a jointure 
 was barred of dower under the stat Hen. 8, it seems to be settled she is not bound 
 by a settlement before marriage disposing of her own real estate. [*538] 
 
 Regarding the point settled in England, it becomes a question, how far we are 
 bound by it, considering the difference in our circumstances, habits and institu- 
 tions. [*539] 
 
 What contracts of an infant are void, or voidable only. [*540] 
 
 AVhatever may be the rule as to executory contracts, it is clear that the executed 
 contract of an infant is voidable only, and only the infant or his legal representa- 
 tives can avoid it. [*541] 
 
 Georgetown, February Term, 1836. 
 
 The following Circuit decree presents the case : —
 
 *529] CHARLESTON, FEBRUARY, 1837. 405 
 
 De Saussure, Chancellor. The first question which arises in this 
 case, is whether the real estate of the late Mrs. Frazer, the wife of the 
 Rev. Hugh Frazer, included in her marriage settlement, made in 1700, 
 when she was a minor, passed and goes under tliat instrument, and 
 according to its provisions ; or descended to her son, the late B. P. 
 Frazer, her only child, and was subject to his debts. It appears that 
 she died when still a minor, and her son died in 1829, leaving alive two 
 children. The doctrine on which this case depends has been much dis- 
 cussed, and a good deal of difference of opinion has prevailed in the 
 Courts. In Drury v. Drury, 2 Eden, 39 — after seven days argument of 
 the ablest counsel in England, it was decided in 1761, by the Lord Chan- 
 cellor, Northingtoii, among other things, that the statute Hen. 8, extends 
 to adult women only, and that notwithstanding a jointure on an infant, 
 she may waive the jointure, and elect to take her dower — also that a 
 icoman-heing an infant, cannot by any contract previous to Iter mar- 
 riage, bar herself of a distributiiie share of her husband^s personalty 
 in case of his dying intestate. The Lord Chancellor, in his elaborate 
 argument, stated (page 50) the question to be, whether sitting in a Court 
 of Equity he could bind an infant to a specific performance of an agree- 
 ment, and bar her from claiming her dower at law, and her share of the 
 personal estate ; and he came to the conclusion that he could not ; for 
 he could not be satisfied that the statute enabled infant girls to agree to 
 settlements to bind themselves, and t® bar them of their legal provisions — 
 dower. On an appeal to the House of Lords, it was directed,* r*cqA 
 after argument by very able counsel, that the crj)inion of the judges ^ 
 should be taken ou the following question : Whether a woman married 
 under the age of twenty-one years, having before such marriage a jointure 
 made to her in bar of dower, is thereby bound and barred of dower, within 
 the statute 27 Hen. 8, ch. 10? (which statute is of force in this State.) 
 There were seven judges present who delivered their opinion seriatim — 
 of these, three were of opinion that she would not be bound and barred, 
 which was in affirmance of the Lord Chancellor's decree. Four of the 
 judges were of opinion that she would be barred, which was against the 
 decree. Lord Hardwicke, sitting in his capacity of a member of the 
 House of Lords, (having long resigned his office as Chancellor,) con- 
 curred fully with the majority of the judges, in the opinion that an infant, 
 having a proper jointure made, is bound and barred by it. Lord Mans- 
 field, sitting as a member of the House of Lords, and of the Court, con- 
 curred in this opinion, and the decree was reversed. Mr. Eden, the 
 Reporter, and grandson of Lord Northington, in a valuable note at the 
 end of the case, (page 65,) states that great doubts were afterwards 
 entertained of the propriety of the decision of the House of Lords ; and 
 that Lord Thurlow is said to have expressed himself strongly in favor of 
 Lord Northington's opinion. But this did not extend to the real estate 
 of the infant. See 18 Ves. 275. Mr. Eden then goes on to state, that 
 the result of subsequent authorities is, that an infant cannot be bound by 
 any article entered into during her minority, as to her own real etitafe; 
 which nothing but her own act, after the period of majority, can fetter or 
 affect. But that she may be barred of her own right of dower by a com- 
 petent and certain provision by way of a jointure ; and her interest in 
 money may be bound by agreement on marriage, which is for her benefit — 
 Vol. I.— 49
 
 406 SOUTH CAROLINA EQUITY' REPORTS. [*530 
 
 and Mr. Eden cites the decided cases on which these conclusions are 
 founded. Mr. Atherly, in his Treatise on Marriage Settlements, page 
 28-9, was of opinion that the weight of authorities was, that a female 
 infant has a right to bind her real estate by marriage settlement. But 
 Chancellor Kent, (2d vol, Cora p. 244,) considers the doctrine settled 
 by Lord Eldon's decisions in Milnor v. Hare wood, 18 Ves. 259; and on 
 examining that case, he says, (p. 2Y5,) that even Lord Thurlow was of 
 opinion that a female infant could not be barred of her own real estate. 
 1 Bro. C. C. 106, 115. By this statement, it appears then to be settled 
 n:no-\-] by the English authorities* that though an infant may be barred 
 -" of her dower in her husband's land by a proper jointure, and of 
 her interest in her personal estate by an agreement on marriage, she can- 
 not be bound as to her oivn real estate. Consequently, the settlement of 
 the real estate of Miss Porter, by her marriage settlement, did not bind 
 her, and she dying whilst an infant, never was bound. Yet, though I 
 take this to be the settled law, I may be permitted to add, that by the 
 practice of this State, it has been usual to include the real estate of 
 infants in marriage settlements. I am not aware that these have ever 
 been questioned, or their binding efiicacy on the female infant, ever 
 decided on. It may be worth considering whether it would be proper to 
 disturb that practice, or bring its validity into question ; until however, 
 a decision be made by the highest authority, I feel bound to adhere to 
 the doctrine as settled by the decided cases. 
 
 I must therefore consider the real estate of the late Mrs. Frazer (wife 
 of Rev. Hugh Frazer), as not bound by the marriage settlement made in 
 her minority, she having died a minor, and consequently the same never 
 having been legally confirmed by her. Her real estate, therefore, de- 
 scended on her death, according to law, one-third to her husband and 
 two-thirds to her infant son, B. P. Frazer. Having come to the conclu- 
 sion that the real estate of Mrs. Frazer descended at her death according 
 to law, by which her son became entitled to two-thirds thereof, on his 
 death his share descended to his children, subject however to his debts. 
 
 It is to subject the lands descended to B. P. Frazer, deceased, to the 
 payment of his debts, that this bill is filed, and his infant children made 
 parties to the amended bill. The demand of the plaintiff is founded on 
 a note of hand, alleged to have been signed by the said B. P. Frazer in 
 his lifetime, and made payable to the late B. Lester, whose administra- 
 trix seeks payment thereof from the estate of the said B. P. Frazer. 
 The Rev. Hugh Frazer, who administered on the estate of his son, B. P. 
 Frazer, and who is entitled to one-third of the estate of his late wife, in 
 his answer to the plaintiff's bill, admits that he has possessed himself, as 
 administrator, of the personal estate of his late son, which, however, was 
 inconsiderable, and that he is also possessed of the real estate of his late 
 wife, called Clegg's Point, to which, by the present judgment of the Court, 
 his son was entitled to two-third parts. With respect to the personal 
 ^ggcj-j estate, Mr. Frazer, the defendant, *admits that he is accountable 
 for the same to the creditors of his son, Benjamin, but that he has 
 paid debts, having legal priorities, to a much larger amount than the 
 actual value of said personal estate ; and that with regard to the real 
 e^state called Clegg's Point, the same was levied on and sold by the sheriff 
 of Georgetown district, some years ago, to wit, in the year 1824, and
 
 *532] CHARLESTON, FEBRUARY, 1837. 407 
 
 during the lifetime of his son Benjamin, under judo-men ts and exeeutions 
 against the said Benjamin, and tliat lie became tlie purchaser thereof, at 
 and for the sum of three thousand dolKars, and has ever since held the 
 said land, having paid the said sura, which has gone in part satisfaction 
 of the numerous creditors of the said B P. Frazer, many of whom had 
 liens long before the claim of the plaintiff, by note in 1830, was even in 
 existence. Wherefore, even if the demand of the plaintiff had been 
 established, which is denied, there remain no funds in the hands of the 
 defendant, out of which such demand could be satisfied. Upon these 
 allegations in the answer, it would be in the course of the Court, that a 
 reference should be had before the Commissioner, who (after the i)laintiir 
 had established her demand) should examine the accounts of the admin- 
 istrator and report thereon. But another question has been raised by 
 the bill and answer, which requires to be discussed and decided. 
 
 It is alleged by the bill, that certain creditors of the said B. B. Frazer, 
 having recovered judgments against him, levied upon a plantation on 
 Waccamaw, commonly called Clegg's Point, as the property of tlie said 
 Benjamin, and at the sale. thereof, by the sheriff of Georgetown district, 
 divers of the creditors of the said Benjamin were present, and ready and 
 willing to bid for the said plantation as much money as would have amply 
 paid all the judgments against the said Benjamin P. Fi'azer, and left the 
 personal estate free, to be applied to the payment of the other debts of 
 the said Benjamin ; at which time and place the said Hugh Frazer under- 
 took and promised to the said creditors, that if they would permit him 
 to bid olf the said plantation, for a sum much less than the actual value,, 
 which they would have otherwise bid, that he, the said Hugh Frazer, as 
 agent and trustee of the creditors, would sell the said plantation for its 
 full and actual value, and apply the proceeds to the paynient of their 
 debts ; but that the said Hugh Frazer has received the rents and profits 
 of the said plantation, and has not resold the same, or applied the pro- 
 ceeds of the plantation to ^satisfy the said judgments and otlier r:);rqq 
 creditors, and applied the remainder of the assets in his hands to '- ' 
 pay the debt due to the deceased B. Lester ; and the bill prayed relief 
 thereon. The amended bill set forth more fully the grounds of the claim, 
 and of the complaint against the said Hugh Frazer, and required a full 
 answer to its allegations as to the estate which his son, the said Benjamin 
 P., was entitled, and insisted upon a discovery thereof, and the applica- 
 tion of the same to pay the debts of the creditors ; more especially as he, 
 the said Hugh, had purchased in the lands at a very low rate and with- 
 out competition, avowedly on the ground that he would pay the creditors 
 of his said son the full value of the said lands. 
 
 The answer of the Rev. Hugh Frazer, as administrator of B. P. Fra- 
 zer, admitted that the personal estate came into his hands to a small 
 amount, which had been applied to pay debts, or to be accounted for. 
 That with respect to the real estate, which had originally belonged to his 
 wife, the late Mrs. Frazer, even admitting that it descended to his son, 
 B. P. Frazer (which was questionable under the marriage settlement), he, 
 the defendant, had become the bona fide purchaser thereof; and that with 
 respect to the alleged promises to the creditors, and the breach thereof, 
 and fraud practiced on them, the said Hugh Frazer denied the same, and 
 insisted, that so far from the said allegations being true, he did not know
 
 408 SOUTH CAROLINA EQUITY REPORTS. [*o33 
 
 that any person intended or wished to make a bid for the lands, and he 
 deterred no person from being a purchaser. That he may have said at 
 the sale, as he has often said since, that he would be glad to make an 
 advantageous sale of Clegg's Point, in order that he might be enabled to 
 pay his son's debts ; but that this was uniformly a voluntary declaration, 
 and that he believed the sum of three thousand dollars (at which the 
 place purchased was knocked off to him) was just that amount more than 
 the interest of his son therein. The defendant further answering stated, 
 that though he was under no obligation to the creditors of his deceased 
 son, he has constantly made efforts to make sale of the plantation at 
 Clegg's Point, always intending to appropriate the proceeds thereof to 
 the payment of his son's debts ; and although he has not been able to do 
 so, he has since the sale of the sheriff, and in anticipation of the sale of 
 the premises which he hoped to make, paid and advanced to the creditors 
 of his said son, fifteen thousand dollars, in addition to the three thousand 
 dollars paid to the sheriff, selecting such as he deemed to be just. 
 ^p^r, ,-| *The allegations and the answer involve a serious question — It 
 "^ -^ is no less than a charge of misrepresentation, and an attempt to 
 hold to his own use, at a very low price, a valuable estate, which is worth 
 a very large sum of money, sufficient to pay the debts of his son ; and 
 which might have brouglit its full value if the creditors had not been 
 lulled into a false confidence by the assurances of the defendant, that he 
 would, if allowed to purchase the land without competition at a low rate, 
 make a re-sale at the full value, for the benefit of the creditors. The 
 answer positively denies the allegations, especially as they relate to the 
 tract called Clegg's Point. The answer of a defendant, especially when 
 made by a man of high character, as in the present case, is entitled to 
 great weight, and cannot be set aside but by great and preponderating 
 evidence. To rebut the answer, plaintiff produced, at the hearing of the 
 cause, a letter from the defendant to the sheriff, Mr. Huggins, dated 6th 
 July, 1824, after he had made the purchase of the land at three thousand 
 dollars, in which he states that he had been informed (by a letter) that 
 the sheriff was directed to advertise and re-sell the Waccamaw lands, 
 which orders he attributed to some misunderstanding among the parties, 
 not knowing that his sole view in purchasing the land was to dispose of 
 the same at some future day, at their intrinsic value, which would more 
 than pay all demands against his son Benjamin ; he adds that he had had 
 a conversation with the attorneys and others, who were all willing to wait 
 for payment. That the sale was gone through for form, for the only bid 
 was made by a friend of his for three thousand dollars, which he promises 
 to pay speedily. At the hearing of the case, Mr, Shaw was examined 
 for the plaintiff, and testified that he was present at the sale of one of 
 the plantations of the lands of B. P. Frazer, in the summer (warm wea- 
 ther) — could not say which of the tracts of land — he was himself a judg- 
 ment creditor of B. P. Frazer. He hadTarious conversations with Mr. 
 Hugh Frazer on the subject ; Mr. Hugh Frazer said, his object in 
 becoming the purchaser of his son's property was to bid it off for the 
 benefit of the creditors of his son, and not with any view to benefit him- 
 self, and he wished the creditors not to interfere with his bidding. The 
 witness told Mr. H. Frazer that any bid would pay his demand, as he 
 was among the earliest of the creditors, and therefore had no interest in
 
 *534] 
 
 CHARLESTON-, FEBRUARY, 1837. 409 
 
 entering into any arrangements, and his means being smnll, he could not 
 bear delay ; Mr. Frazer *said there were persons who induced his r*-Qf; 
 son to make improper purchases, and if he had the control of his L ' ^**^ 
 pro])erty, it would enable him to prevent such improper dealings. The 
 witness attended the sale on the same day ; Mr. Marvin was the only 
 person who ojiposed Mr. Hugh Frazer in bidding — at each bidding, Mr. 
 H. Frazer told Mr. Marvin he stood in his own light, for that he CMr. 
 Frazer) was bidding for his benefit, and that of the other creditors of his 
 son. This was repeated several times. Being cross-examined, JNIr. Shaw 
 testified that he was inclined to think this was at the sale of the Black 
 River lands, which are distinct from Clegg's Point. He does not remem- 
 ber if Mr. Coggeshall was present, as Marvin's adviser. On being re- 
 examined, Mr. Shaw testified that he did not remember whether the land 
 was knocked off to Mr. Frazer ; the general impression was, that the 
 land did not sell for half its value. Witness considered Mr. Frazer's 
 declarations as general, and as applying to all his son's property, and not 
 to any particular land ; and from Mr. Frazer's declarations, believed he 
 was acting for the benefit of his creditors, and that his purchasing his 
 son's property made it unnecessary for the creditors to bid or interfere ; 
 don't remember whether Clegg's Point was knocked olT to Mr. Frazer. 
 (The answer admitted it.) 
 
 The plaintiff's counsel produced the marriage settlement of Rev. Hugh 
 Frazer and Miss Porter, March, 1196. She was then under age; her 
 son, B. P. Frazer, was born in 1*797 ; the mother died under age; B. P. 
 Frazer died in 1829, leaving two children. The execution states a levy 
 on plantation, without specifying ; date May 15th, 1824. It would be 
 a difficult thing to decide on this part of the case. The answer of the 
 defendant, a respectable clergyman, is certainly at variance with the letter 
 of 6th of July, 1824, (above cited,) and with the evidence of Mr. Shaw, 
 a respectable witness. Both the witnesses are entitled to credit ; but 
 there must be a failure of recollection on one side or the other, which is 
 not to be wondered at, after a lapse of eleven or twelve years ; yet the 
 letter of Mr. Frazer seems to corroborate the recollections of Mr. Shaw. 
 Under these circumstances, it would be a most painful duty to decide 
 this case on that ground, and as I think, it may be properly decided ou 
 another, 1 willingly avoid doing so. Mr. Frazer states, that though he 
 does not feel himself legally bound to make a re-sale of the lands, and 
 especially of Clegg's Point, yet he was willing, and had offered, from a 
 sense *of justice to his son's creditors, to sell the lands at their full r^co^. 
 value, if that could be obtained, and to apply the proceeds to the ^ 
 payment of the just debts of his son ; and that in anticipation of such 
 sales he had actually paid just debts of his son's, to the amount of $15,- 
 000 over and above the $3000, at which he had bid off the land. Now, 
 if this be correctly stated, as we have reason to believe, then there is no 
 ground to insist on the sale of the land; for the defendant has done, by 
 anticipation, out of his own funds, all that could be required of him, if 
 the case had l^een most fully proved against him ; for it is not contended 
 that the lands and the personal property together, exceed $18,000 in 
 value. It is therefore ordered and decreed, that it be referred to the 
 Commissioner to receive proofs of the amounts paid by the Rev. Hugh 
 Frazer, on his son's debts ; and of the value of the real and personal
 
 410 SOUTH CAROLINA EQUITY REPORTS. [*536 
 
 estate of the said B. P. Frazer, which came into the hands of Mr. Hugh 
 Frazer, and to report thereon ; and also to report if any, and what 
 amount is due to the plaintiff. 
 
 From this decree, the defendant appealed on the following grounds : — 
 
 1. Because his Honor decided, " that the real estate of Mrs. Frazer 
 was not bound by the marriage settlement, made in her minority, she 
 havitig died a minor, and consequently, the same never having been le- 
 gally confirmed by her ; and that her real estate, therefore, descended on 
 her death, according to law, one- third to her husband, and two-thirds to 
 her son ;" whereas, it is most respectfully submitted, that the settlement 
 was valid, and did not require confirmation ; or, in any event, the cove- 
 nant of Mrs. Frazer could only be avoided by herself, or her legal repre- 
 sentatives ; and the settlement should be sustained in favor of the infant 
 defendants, who were purchasers under it. 
 
 2. Because, if the settlement were void, and two-thirds of the Glegg's 
 Point plantation vested in Benjamin P. Frazer, deceased, the allegation as 
 to the contract, made at the sherifi^'s sale, was positively denied by the de- 
 fendant's answer, which, it is most respectfully submitted, is perfectly re- 
 concilable with the evidence adduced at the trial, and therefore, no refer- 
 ence was necessary as to the payments made by the defendant. 
 
 3. Because the defendant's answer having denied any assets of his in- 
 testate, and no proof to the contrary offered, the bill should have been 
 dismissed. 
 
 ^rqw-i 4. *Because the decree was made without any evidence of a 
 -' debt due to the plaintiff, or assets in the hands of the defendant. 
 
 Dunkin, for the appellant. 
 
 Hunt, contra. 
 
 Chancellor Johnston delivered the opinion of the Court. 
 The leading questions propounded in this appeal, and those alone on 
 which the Court think it necessary to express any opinion, are : — 
 
 1. Whether a female infant is bound by marriage articles, by which 
 her own estate is settled to the use of the marriage ? 
 
 2. If not, whether any other than herself, or her legal representatives, 
 can avoid it? 
 
 They arise out of marriage articles entered into between the Rev. 
 Hugh Frazer and Elizabeth Clegg Porter, in 1796, the said Elizabeth 
 then being about sixteen years of age ; whereby a plantation called 
 Clegg's Point, of which she was then seized, is conveyed to trustees to 
 the use, in the event which has happened, of the intended husband for 
 life, remainder to all and singular the children of the marriage, and to 
 "the lawful issue of any such children as may happen to be dead, equally 
 and impartially to be divided between and among them," &c. The mar- 
 riage contemplated was accordingly had and solemnized, and the only 
 \ssue of the marriage was a son, Benjamin Porter Frazer. Elizabeth, the 
 tv'ife, died in HQI, being then under the age of twenty-one years. Ben- 
 jamin, the son, died in 1829, being then upwards of thirty-two years of 
 age, leaving two children, parties defendants in this suit. The Rev. 
 Hugh Frazer, the husband, is still alive, and also a party defendant, the 
 administrator of Benjamin, the son. The plaintiff claims as a creditor
 
 *537] CHARLESTON, FEBRUARY, 1837. 411 
 
 of Benjamin, the son, who died otherwise insolvent; and in support of 
 the bill it is insisted that the marriage articles are void, Elizabeth the 
 wife being an infant at the time of their execution ; consequently on her 
 death, two-thirds of Clegg's Point descended to the son Benjamin, and 
 are assets for the payment of his debts. It may be proper also to pre- 
 mise that at the time of the marriage, the wife Elizabeth was, in addition 
 to Clegg's Point, seized of other real estate, and possessed of a number 
 of slaves, all of which was by the terms of the articles secured to the 
 joint use of husband and wife during their joint *lives, remainder r^-oo 
 to the survivor, and on the death of the survivor, remainder to L ^ 
 the children &c., as before stated ; and that nothing like fraud in obtain- 
 ing the marriage articles has been charged or pretended. So that the 
 questions propounded are unmixed questions of law. 
 
 The question whether a female infant is, or is not bound by a marriage 
 settlement which disposes of her own real estate, is one of much interest, 
 and about which there has been great diversity of opinion amongst the 
 most learned lawyers and judges of the English Courts. It is one of 
 the first impression here, and as it is not indispensable to the satisfactory 
 determination of the case before us, I propose only to offer some general 
 views of it, more with a view to call the attention of the profession to it, 
 than to express any settled opinion of my own. 
 
 In Drury v. Drury, 2 Eden, 39, th-e question was, whether an infant 
 wife, who had been jointured, was, or was not barred of dower in the 
 lands of her husband under the statute of 27 Hen. 8th ; and on discuss- 
 ing that case, the Court went very fully into the general question, whether 
 a female infant was or was not bound by a marriage settlement disposing 
 of her real estate ? Lord Northington, who tried the cause, held that 
 she was not bound, either by the statute, or by the rules of the common 
 law, and that she might elect to take either the jointure or dower. He 
 insists that the policy of the common law, which avoids the contracts of 
 infants in other matters, extends also to marriage settlements of real es- 
 tates by female infants. That as an incident to marriage, the law had 
 endowed the wife in the lands of her husband, and conferred on the hus- 
 band all the chattels of the wife, regarding each as an equivalent for the 
 other : thus superseding the necessity of any contract between the hus- 
 ' band and wife in relation to their estates. The judgment was however 
 reversed, on an appeal to the House of Lords, with the concurrence of a 
 majority of the judges, amongst whom were Lord Hardvvicke, Lord 
 Mansfield, and Wilmot, J. On that side of the question, it is maintained 
 that although infants are not generally bound by their contracts, they are 
 bound by such as are for their benefit, as for necessaries and the like. — 
 That a female infant over twelve years is capable of entering into the 
 contract of marriage, into the consideration of which, the settlement of 
 her real estates enters very largely, and without which the marriage 
 might never have been had, and as the marriage is *indissoluble, r*con 
 the settlement ought to be binding. See 2 Eden, 64-72, Wilmot's '- 
 Notes, 184. And in this opinion Mr. Atherly, in his treatise, on Mar- 
 riage Settlements, pp. 39, 40, after a full review of the authorities, con- 
 curs, regarding the direct question as not then entirely settled. It came 
 up again incidentally in Durnford v. Lane, 1 Bro. C. C, 106, when 
 Lord Thurlow expressed himself favorably towards the judgment of
 
 412 SOUTH CAROLINA EQUITY REPORTS. [*539 
 
 Lord JSrovtliino;ton, in Drnry v Drurv, and in Milner v. Harewood, 18 
 Ves. 275, which was tried in 1811. Without entering into the argument, 
 or reviewing the cases, Lord Eldon concurred in that opinion, and that 
 seems to be regarded as decisive of the question there. — 2 Kent's Cora. 
 199. 
 
 If the matter be regarded as definitively settled there, it becomes a 
 question how far we are bound by it. The Act of 1112, while incorpo- 
 rating the body of the English common law into our jurisprudence, 
 renders it obligatory no further than it is applicable to our own condition 
 and circumstances ; and in applying the rules, we must take care that 
 they do not violate some other fixed rule growing out of our own pecu- 
 liar habits and institutions. It would be unsafe, therefore, implicitly to 
 follow the English Courts, without inquiring whether, under the circum- 
 stances existing here, a different rule would not have obtained there. 
 
 Without adverting to the causes, which must be obvious to every one 
 who has considered the subject, it is well ascertained that our females 
 marry at a much earlier age than even in England ; indeed the instances 
 in which females do not marry before the age of twenty-one years, may 
 be accounted rare. The policy of throwing no difficulties in the way, or 
 rather of encouraging them, is peculiarly applicable to the sparse popula- 
 tion, and the great facilities of obtaining subsistence ; and into whatever 
 speculations the subject may lead, there can be no question that marriage 
 settlements, especially amongst the richer classes, enters very largely 
 into the contract of marriage, and that any restraint upon them would 
 oppose an obstruction. 
 
 In England, whilst personalty is scarcely regarded at all, real estates 
 are very highly estimated, and descend in the male line : the instances in 
 which the wife brings with her real estate on marriage, are, therefore, 
 rare ; and it might well be thought that it was unnecessary to break in 
 upon a general rule, to provide for the few cases which might arise, espe- 
 
 *540] 
 
 cially as the value of the real *estate of the wife might be regarded 
 
 as more than an equivalent for any provision which the husband 
 might be able to make for her. Here it is otherwise ; real estates de- 
 scend equally to the males and females, and the value of slaves, which 
 are regarded as chattels, and other personalty usually attached to a well- 
 settled plantation, may be safely estimated at double the value of the 
 realty, and in most cases the portion of the wife consists partly of both. 
 There is also another diversity. In England, provision is usually made 
 for the wife out of the fortune of the husband, in consideration of the por- 
 tion which the wife brings. Here the object is generally to secure to the 
 wife her own fortune, consisting of lands or negroes, or both. And if a 
 female infant may bind herself by a settlement of her personalty, (and 
 that she may is universally conceded,) to deny her the power of also dis- 
 posing of her real estate, would be to frame a rule giving her the shadow, 
 whilst the substance is taken from her. The slaves and the plantation 
 are inseparable ; one would be comparatively useless without the other, 
 and the interest of the wife would seem to require, that she should be left 
 to treat the matter without restraint. The watchfulness of parents, and 
 the care of guardians and friends, would in general be a sufficient guard 
 against rash and inconsiderate settlements on her part, and the Courts
 
 *540] 
 
 CHARLESTON", FEBRUARY, 1837. 413 
 
 of justice would always relieve against positive frauds in obtaining 
 them. 
 
 Tlicre is another consideration. Instances of female inf\ints settling 
 their real estates on their marriage, must have very frequently lia])])ened, 
 and the question whether they are bound by them, never has been before 
 made. They have always been treated as valid, and the estates have 
 ]iasscd under them. Public opinion appears to have settled down in 
 favor of their validity, and to introduce a new order of things might dis- 
 turb the repose of titles which have been acquired under them. The 
 matter ought therefore to be well weighed before we venture upon it. 
 
 The remaining question is one of less difficulty. "J'he question as to 
 what contracts of an infiint are absolutely void, or voidable only, is a very 
 fit subject of a lecture or disputation, but I do not perceive that we should 
 derive any advantage from treating of it so much at large here. It is 
 already sufficiently ascertained that there is a class of contracts, (within 
 which, I propose to show that this case falls,) which are considered as 
 voidable only, and that the election to avoid or abide by them, is a per- 
 sonal privilege, of *vvhieh no other than the infant, or those claim- r:^r ,^ 
 ing as legal representatives, can avail themselves. L 
 
 Bingham, in his Treatise on Infancy, p. 33, lays down the rule that all 
 the acts of an infant, capable of being legally ratified, are voidable only, 
 and that such only are absolutely void as are incapable of being legally 
 ratified; and on this principle it was held in Zouch v. Parsons, 3 Bur. 
 1794, that the conveyance of an infant by lease and release, was voidable 
 only. But Chancellor Kent has, I think, vshown very clearly that the 
 rule is not a certain test, and after reviewing the authorities, concludes 
 with Chief Justice Eyre, in Kean and Boycott, 2 H. Black. 511, that 
 when the contract of an infant was obviously to the prejudice of the 
 infant, it is void — when, for his benefit, as for necessaries and the like, it 
 is good ; and when uncertain as to the benefit or prejudice of the infant, 
 is voidable only at his election. 2 Kent Com. 192-3. 
 
 These rules apply obviously to executory contracts, and I cannot well 
 suppose that it ever yet entered into the head of any one, who considered 
 the subject, that the executed contract of an infant, where he had done 
 all that was necessary to invest another according to the forms of law, 
 with the title and possession of his estate, was absolutely void. For 
 example : an infant makes an advantageous bargain in the sale of his 
 estate, or he gives it away, and executes formal conveyances, and the 
 purchaser or donee enters under it; himself and his legal representatives 
 are well satisfied to acquiesce in it — can it be that a stranger would be 
 permitted to enter on the purchaser with impunity, on the ground that 
 be derived his title from an infant ? And yet this must be the eifect, 
 if the conveyance of the infant is absolutely void. 
 
 Atherly, in his treatise on Marriage Settlements, p. 43, has, in a note, 
 referred to Perkins as authority for a rule, which appears to me to point 
 at the principle. It is, " That all gifts, grants, or deeds, made l)y infants, 
 which do not take effect by the delivery of the hand are void, but all 
 gifts, grants, or deeds, made by infants by matter in deed or writing, 
 which do take effect by delivery of his hand, are voidable by himself, his 
 heirs, and those who heir his estate." That the infant, or his legal rep- 
 resentative alone, are competent to avoid a voidable contract, is not, I
 
 414 SOUTH CAROLINA EQUITY REPORTS. [*541 
 
 think, questioned anywhere. That doctrine is distinctly recognized by 
 Lord EldoQ in Mihier v. Harewood, and in that all the authorities 
 agree. 
 
 ^r -c^-| In England, lands pass only by livery of seisin, and it might 
 -"J *^gii be questioned whether the conveyance of an infant by deed, 
 without livery, was void, or voidable only; but here the delivery of the 
 deed is substituted for the livery of seisin, and invests the purchaser with 
 the title. 
 
 Here, Elizabeth Clegg Porter, then an infant, in contemplation of mar- 
 riage with Hugh Frazer, conveyed her estate to trustees for certain uses. 
 She died during her infancy, her husband surviving, and supposing the 
 conveyance to be voidable only, she was never competent, nor did she 
 make an election, whether to be bound by it or not. Her only issue, 
 Benjamin, lived to the age of thirty-two, eleven years after he attained 
 full age, without calling the estate in question, or making his election. 
 The descent is now cast on his infant children, who must of course elect 
 to take under the settlement, as otherwise the estate would be assets to 
 pay the debts of their father. The creditors of Benjamin, strangers to 
 the blood of Elizabeth, very clearly have no right to interfere in the 
 matter. 
 
 The plaintifiPs bill must therefore be dismissed, so far as it seeks to 
 charge the settled estate ; each party to pay their own costs. 
 
 George W. Brown and Wife v. James Lindsay, Administrator of John 
 Atchison, and Others. 
 
 The husband having leased his wife's inheritance and died during the term, the 
 administrator, who also acted under a power of attorney from the wife, received 
 the rent from the tenant : Held, that the wife was entitled to the rent accruing 
 after the husband's death. [*645] 
 
 As regards lands owned by the wife in fee, the dominion of the husband continues 
 no longer than marriage; after that, she may defeat an unexpired lease of the 
 husband altogether by ousting the tenant, or claim the benefit of it. [*5i')] 
 
 Heard before Chancellor Johnson, Charleston, May Term, 1836. 
 
 The material facts of this case are as follows : — 
 
 John Atchison and his wife, being each seized in fee, in equal undivided 
 shares of the livery stable and lots in Church and Chalmers streets, Char- 
 leston ; Atchison, in May, 1830, leased the whole of the premises to 
 Edward Francis, for live years, at two thousand dollars a year. 
 
 In April, 1833, Atchison died intestate, leaving his wife and three 
 infant children by a former marriage. James Lindsay administered on 
 his estate. Atchison's widow married Geo. W. Brown. 
 
 The lease to Francis expired in May, 1835 ; and Francis paid the rent 
 due, to the administrator of Atchison, his lessor ; no rent being ever 
 *5431 ^^^^^^^d^d of him (Francis) by the widow or her second "hus- 
 band ; nor did either of them ever enter, or interfere with the 
 lease, after the death of Atchison ; unless that be inferred from their 
 giving Atchison's administrator a general power of attorney to receive 
 moneys due them.
 
 *543] 
 
 CHARLESTON, FEBRUARY, 1837. 415 
 
 Brown and wife having filed their bill against the administrator and 
 children of Atchison, for a settlement of his estate, it was referred to the 
 Commissioner to take the accounts, and ascertain the net distribuiive 
 shares of the widow and children, in the estate. 
 
 The Commissioner reported, that Mrs. Brown was entitled to two- 
 thirds of the rent which accrued after Atchison's death — to wit, to half 
 of the whole rent on account of her ownership of one moiety of the i>rc- 
 mises, and third of the other half, as widow and distributee of Atchison. 
 To this report the children of Atchison excepted : — 
 
 "1. Because John Atchison, the husband of Mrs. Sarah Atchison, 
 (now Mrs. Brown,) was authorized, by law, to lease his own moiety and 
 also his wife's moiety of the premises, to Edwai-d Francis ; and that the 
 entire accruing rent, for the whole term, was distributable as assets of his 
 estate. 
 
 " 2. Because the lease to Francis was the property of John Atchison's 
 estate, which might perhaps have been defeated by entry by his widow, 
 on his death ; but that the right of Mrs. Atchison, was no more than a 
 right of entry, and not a 7'ight to the rent reserved by the lease. And 
 the wife not having entered, or done any act to defeat the lease, she made 
 her election to take one-third of the rent under it, as a distributee of her 
 husband's estate." 
 
 Johnson, Chancellor. The question is, whether Mrs Brown is entitled 
 to a moiety of the rents accruing after the death of the intestate, or 
 whether they are assets in the hands of his administrator. 
 
 There is no question that the wife's inheritance in land abides in her, 
 notwithstanding her coverture, and survives to her on the death of the 
 husband. The husband may, however, during his life, use, alien or 
 charge the lands of the wife ; but, on his death, these and all other in- 
 cumbrances, fall off and drop with his estate and interest therein. (Bac. 
 Ab. title Leases and Terms for years, C. 1.) 
 
 It seems, however, that it has been a controverted question, whether a 
 lease, made by the husband, of the wife's lands, for a longer *term r^^KA, 
 than his own life, the wife surviving, became absolutely void on ■- 
 his death, or was only voidable at the election of the wife. 
 
 Bacon, in the chapter before referred to, lays it down, that it is good 
 for the whole term, unless the wife, by some act after the husband's death, 
 shows her dissent thereto ; for if she accepts rent, which became due after 
 his death, the lease is thereby rendered absolute and unavoidable. The 
 reason given is, that by reason of the marriage, the wife loses altogether 
 the power of contracting or disposing of her own possessions ; and, having 
 subjected herself to the will and power of the husband, the power of con- 
 tracting about, and disposing of, her possession, devolves upon him ; 
 because no one else has the right, or power, to meddle therewith ; and 
 without such power, they would be obliged to keep them in their own 
 hands and occupation, — which might, finally, prejudice both. The abuse 
 of this power, is guarded against, by permitting the wife, after his death, 
 to affirm or disaffirm, his lease, as she may find most subservient to her 
 own interests. 
 
 So, in Cruise's Digest, vol. 4, p. 64, it is said that such leases by the 
 husband are not void, but voidable, at the election of the wife. And
 
 416 SOUTH CAROLINA EQUITY REPORTS. [*544 
 
 Chancellor Kent, (2 Kent's Com. 112,) on the authority of Mr. Preston, 
 (Essay on Abs. of Titles, Vol. 1, p. 334, 435-6,) remarks, that from the 
 authorities, when closely examined, it seems, that, according? to the com- 
 mon law, the husband has the power of transferring the whole estate of 
 the wife ; and the estate will be in the alienee of the husband, subject to 
 the entry of the wife, or her heirs, after the death of the husband, which 
 entry is necessary to revest the estate. But Sergeant Williams, in a note 
 to Waller v. Hill, (2 Saund. 180, note 81,) whilst he questions whether, 
 as a general rule, this doctrine is tenable, takes a distinction which is 
 very plausible, if not entirely sound, and is certainly more consonant to 
 the analogies of the law, and has, by that means, attempted to reconcile 
 the cases. Estates for life being freehold estates, could only commence 
 in livery of seisin, and can only be avoided by entry. But not so in 
 leases for term of years, where livery of seisin was unnecessary. And, 
 therefore, he concludes that leases for life are only voidable, and leases 
 for term of years absolutely void. 
 
 Roper, in his treatise on property arising from the relation of husband 
 and wife, (vol. 1, page 93,) seems to take for granted, that notwithstand- 
 ing some cases to the contrary, a lease by the husband alone, of the lands 
 of the wife, for a term of years, is absolutely void as to the wife surviving, 
 ^r . r -| *But this question is wholly irrelevant to the matter now in issue. 
 •^ The argument of the defendants is, that the lease was voidable 
 only ; and that the wife could avoid it only by entry, or, according to the 
 laws of this State, by suit at law against the lessee. Conceding this to 
 be correct, it does not follow that she is not entitled to the rents. All 
 the authorities agree that where the lease is voidable only, any act of the 
 wife, confirmatory of the lease, such as bringing an action of waste, or 
 receivivg the rents, Sih&c i\\Q death of the husband, is evidence of the 
 election of the wife to confirm the lease. It follows, therefore, that she 
 may receive the rents. A contrary rule would directly infringe the fun- 
 damental principle, that a husband cannot alien the inheritance of the 
 wife, to her prejudice and against her consent, so as to bind her after his 
 death. If liis representative, and not the wife, is entitled to the mesne 
 profits, until she sue, (no other entry is known here,) she would be de- 
 prived of the rents, ad interim. 
 
 I concur, therefore, in the view taken by the Commissioner ; and it is 
 ordered and decreed that his report be confirmed, and made the judg- 
 ment of the Court. 
 
 The infant children of Atchison appealed from this decision, on the 
 grounds stated in their exceptions taken to the Commissioner's report. 
 
 H. A. De Saitssure and Crafts, for appellants. 
 
 Fetigru and Lesesne, conti'a. 
 
 Chancellor Johnston delivered the opinion of the Court. 
 
 The only point made by the appeal, relates to the rent which accrued 
 on the widow's half of the lot, after the death of the husband. 
 
 The more convenient method will be to consider this moiety as if it 
 were a distinct parcel of land, owned entirely by the wife. 
 
 _ The case, then, is : a husband grants a term out of his wife's fee, and 
 dies pending the lease, having received the rent up to his death. The
 
 *545] CHARLESTON, FEBRUARY, 1837. 417 
 
 tenant is permitted to hold to the end of the term, and pays the residue 
 of the rent to the husband's administrator ; who, at the same time, holds 
 a general power from the widow to receive moneys due to her. 
 
 The question is, whether the administrator can hold the residue of 
 *rent, thus received by him, as assets of the husband, or whether r±- .^ 
 it belongs to his wife ? L "^ 
 
 The dominion which a husband acquires over his wife's property, re- 
 sults entirely from the contract between them. If tliey have made an 
 express contract, lawful in its terms, that will govern. If, as was the 
 case here, there was no express contract between them, the law raises an 
 implied one, according to the character of the wife's proi)erty. — t Yes. 
 183; 9 Ves. iTt. The implication as to her chattels real is, that the 
 husband may forfeit or dispose of them during her life. If he docs not, 
 they go absolutely to whichever of the two happens to survive the other. 
 I mention this to relieve the case, at once, from the authority of Preston. 
 He has been quoted to show, that in the case at bar, the administrator of 
 Atchison is entitled to the rents. But his authority is a case of the wife's 
 leasehold estate, and decides nothing here, where the estate of the wife is 
 a fee. 
 
 The implication of law, as regards lands owned by the wife in fee, is, 
 that she has granted the husband dominion over them during the contin- 
 uance of the marriage. When the marriage ceases, his control ceases 
 with it; the wife is re-invested with all her original rights, and is not 
 bound by any contract made by him beyond the authority she by marriage 
 conferred on him. 
 
 If the husband die, ]iending a lease granted by him out of the wife's 
 fee, the rights incident to her fee immediately vest in her ; and she may 
 select what mode she pleases for asserting them. 
 
 She may proceed against the lessee. He is but the assignee of the 
 husband. And the husband having acted under a limited power, the 
 wife may avoid his act, so far as it exceeded his authority. 
 
 In proceeding against the lessee, she may defeat the lease altogether, 
 for the unexpired part of the term ; or she may claim the benefit of it. 
 In the latter case, while she avoids it as to the husband, she affirms it as 
 to the tenant ; and it becomes, as it were, a new lease executed between 
 the tenant and herself. 
 
 If she treats the tenant as a trespasser, she defeats the lease altogether ; 
 and so far from entitling herself to the rent reserved by it, as was argued, 
 destroys the rent by denying the tenure. The occupant, considered as a 
 trespasser and not as a tenant, is liable if he detains possession, not for 
 rent, but for damages. 
 
 If she receives rent from him, or sues him for rent as a tenant, she, so far 
 as he is concerned, affirms the lease ; but affirms it as her own. 
 
 *It has been argued, that the wife cannot claim the rent, as r:|<r ii, 
 against the husband's executor, unless she deprives the lessee of •- 
 the term. The argument seems to be, that so long as the tenant is per- 
 mitted to enjoy the lease, it stands as the contract of the husband who 
 made it, and his executor is entitled to the benefit of it. But the cases 
 quoted by the appellants themseves, show that this position cannot be 
 maintained. They say that the wife's receipt of rent, so far from defeat-
 
 418 SOUTH CAROLINA EQUITY REPORTS. [*54T 
 
 ing the lease, as to the tenant, confirms him in his term ; and yet they 
 say that the wife is entitled to the rent she has received. 
 
 The affirmation of the contract as to the tenant, is no affirmation of it 
 as to the husband, but merely substitutes the wife in his place, as a party 
 to it. If, instead of substituting her, it is a confirmation as to the hus- 
 band, and perpetuates his contract for the benefit of his executor, then 
 the wife is accountable to him for the rents she has received. The con- 
 sequence would seem to be that she is to be held bound by the contract 
 to confirm, and at the same time deprived of the consideration of that con- 
 tract. If the executor should not see fit to look to the wife for what she has 
 received, or she should waste it, he might still insist that inasmuch as the 
 wife's confirmation perpetuated the husband's contract for the husband's 
 benefit, the very payment which served to confirm the lease was no discharge 
 to the tenant ; and that he still remained liable to the executor ; a con- 
 sequence equally absurd and unjust. 
 
 In this case, Mr. Lindsay, when he received the rent, was not only 
 Atchison's administrator, but also the attorney for the widow. The act 
 of receiving may be referred to either character. If we refer it to his 
 character of attorney, it is as if the widow had herself demanded and 
 received the rents from the tenant. In that case she would, as we have 
 seen, be entitled to them, as between herself and the administrator. 
 
 We have stated what rights the wife may exert as against the tenant. 
 If she ousts him, she disaffirms the contract, both as against lessor and 
 tenant. In that case the tenant may look to the lessor's estate for 
 damages on the covenant. If she claims rent from the tenant, she con- 
 firms as to him, but disaffirms as to the husband. In that case the con- 
 tract between the husband and tenant is dissolved, but without laying a 
 foundation for damages on either hand. 
 
 But the widow here did not oust the tenant ; and it is contended that 
 *p.isi ^^^' Liiidsay received the rent as Atchison's administrator, *aud 
 -J not as her agent. Let us see what, on principle, must be the 
 consequence. 
 
 The wife, in the case we have just supposed, has permitted the lease to 
 stand as between the lessor and tenant : and the tenant has, I presume 
 rightfully, paid the rent to his landlord's representative. I suppose the 
 wife has lost her right as against the tenant. He was not to take notice 
 of a claim never interposed, and being in under the husband, and never 
 disturbed, he could neither aver against his landlord's title, nor resist 
 payment. 
 
 But I apprehend the wife has a good right to disaffirm the contract 
 against either party to it. She may do this as against the husband, 
 although she forbore to do it against his tenant. 
 
 It must be borne in mind, that the husband acted under a power 
 coupled with an interest, which he derived from her. For any act beyond 
 his interest, he must be regarded as her agent. His representative is not 
 entitled to hold against his principal what he has received, by exceeding 
 his authority, and beyond his interest. 
 
 The motion is refused. 
 
 Chancellors Johnson and Harper, concurred.
 
 *548] CHARLESTON, FEBRUARY, 1837. 419 
 
 Wm. a. Caldwell, Administrator of George Chur, v. Robert Giles, 
 
 Assignee. 
 
 A decree obtained by fraud may be set aside on an original bill for that purpose ; 
 but on a bill to obtain satisfaction of a former decree, the defendant in his answer 
 cannot avail himself of this so as to resist performance [*548] 
 
 Heard before Chancellor Harper, Charleston, Jannary Term, 1856. 
 
 The decree of the Chancellor states the question made in this case as 
 follows : 
 
 " The plaintiff's bill is to obtain satisfaction of a decree for the pay- 
 ment of $1,488 13, and iuter'fest, formerly obtained in this Court, by his 
 intestate, the said George Chur, against the defendant, Robert Giles, 
 assignee of Thomas W. Giles. There is no question of the fact of such 
 decree having been obtained, or that it remains unsatisfied. But the 
 defendant, by his answer, states many circumstances to show that the 
 original demand on which the decree was obtained, was unjust and fraudu- 
 lent. These were *evidently the same matters which were urged r^r in 
 in defence in the former cause, and cannot be taken into consider- '- 
 ation now. 
 
 " Among the rest, however, it is stated that the decree itself was ob- 
 tained by fraud, by the said George Chur's inducing the said Thomas W. 
 Giles, who was sworn as a witness in the cause, to swear untruly in sup- 
 port of his demand ; and that for this purpose he used various artifices, 
 and promised to share with him the amount to be recovered. There is 
 no question, but that if a decree be obtained by fraud, it may be set aside 
 on an original bill for that purpose. The only question is, whether the 
 defendant can avail himself of this by his answer, so as to resist the per- 
 formance of the decree. I am of opinion that he cannot." 
 
 The Court accordingly refused to hear the defendant on that point, 
 and ruled that the plaintiff was entitled to a decree. And the defendant 
 appeals on the following ground : 
 
 That the Court ought not to give relief, by giving active efficacy to a 
 decree, which the defendant alleges was obtained l)y fraud, until it has 
 heard the evidence ; and if the evidence supports the defence, tlie Court 
 should refuse to revive the decree on the ground that the Court will not 
 lend its aid to make a fraud successful. 
 
 Hunt, for appellant. 
 
 Peronneau, Mazyck and Finley, contra. 
 
 Harper, Chancellor. The Court concur with the Cliancellor, that the 
 matters put in issue by the answer are precisely the same as those recorded 
 in the original proceeding, and cannot therefore avail the defendant, by 
 the way of answer to this bill. If it can in any event avail the defendant, 
 it can only be on a bill to set aside the decree for the fraud complained 
 of, and that course of proceeding is the only one recognized by the 
 precedents. ^ Motion dismissed, and the decree of the Circuit Court is 
 affirmed.
 
 420 SOUTH CAROLINA EQUITY REPORTS. [*549 
 
 Cooper v. Administrators of Reid. 
 
 A surviving partner winding up and settling the affairs of the firm, is 
 not entitled to commissions unless stipulated for by contract. The Act 
 of 1745, (P. L. 202-3,) relates only to trustees who have the manage- 
 ment of the estates of " infants or minors." 
 
 *550] *JoHN H. Wilson and Wife v. Maria Freer, and Others. 
 
 Testator hy bis ■will devised his plantation to his son Charles in fee, but if he should 
 die under age and without issue, then to be kept for the use and maintenance of 
 his wife and unmarried daughters, and on marriage to be sold and eqmiUy divi- 
 ded between his wife and surviving daughters. Charles died under age, and without 
 issue leaving four sisters, the mother having died before ; one sister died shortly- 
 after, unmarried ; two afterwards married and died leaving issue, and the last died 
 lately, unmarried : IJehl, that the devise to Charles was a fee simple, defeasible on 
 his death under age and without issue; that the limitation over to the wife and 
 daughters was contingent, and must fail, because at the event on which it was 
 limited over there was none answeriog the description to take ; and that, on the 
 death of Charles, the fee reverted to testator's right heirs, and those answering 
 the description of heirs at that time take. ["552] 
 
 Heard before Chancellor De Saussure, Charleston, January Term, 
 1837, who pronounced the following decree : 
 
 William Stanyarne, the testator, died on the 5th May, 1783, leaving 
 alive his wife Anna, and the following children : — his son Charles, and 
 his daughters Elizabeth, Mary, Frances, and Anna. The widow of the 
 testator died in 1783 or 1784. The son Charles also died soon after, 
 under age and without issue ; then the daughter Frances died unmarried. 
 Elizabeth married John Wilson, survived her husband, and died in 1804. 
 leaving issue John, William, and Sarah Wilson. 
 
 Mary married Charles Freer, survived her husband, and died in 1811, 
 leaving issue Frances, Maria, Charles, and John Freer. The sons, John 
 and Charles, are dead, leaving vi'ills, which have been proved, and the 
 executors have qualified. 
 
 The testator's last daughter, Anna, died iu the year 1836, unmarried. 
 She devised her estate to Maria A. Freer. 
 
 By his last will and testament, duly executed, William Stanyarne de- 
 vised his plantation on John's Island, to his son Charles, his heirs and 
 assigns for ever : Provided, that if his son Charles should die before he 
 attained the age of 21 years, without issue of his body lawfully begotten, 
 then in that case, the plantation so devised to him, should be kept for the 
 use, profit and maintenance of his (testator's) wife, Anna Stanyarne, and 
 all his surviving children, or child, for the use, profit and maintenance of 
 all his unmarried children, until the day of marriage. Then and after, 
 the said plantation should be sold by his executor and executors, and the 
 money arising therefrom should be equally divided between tiis wife and 
 surviving daughters or daughter, share and share alike, to them and 
 their heirs for ever 
 
 The first devisee of the land, Charles, having survived his father, the
 
 *550] CHARLESTON, FEBRUARY, 1837. 421 
 
 estate vested in him, but he dying afterwards under age, and without 
 lawful issue of his body, the devise to him failed and the estate was 
 divested. 
 
 The estate continued to be held and enjoyed by the surviving children, 
 who died successively in the order above stated. 
 
 The daughter Anna, who survived all the rest, having died in 183G, 
 unmarried, the question which now arises is, whether any *and what r^^r r -i 
 persons are entitled to the plantation in question, under the will of ^ 
 the testator or otherwise. 
 
 It is certainly an obscure will, and it is not easy to form an opinion 
 entirely satisfactory to the mind. The description of those who are to 
 take under the devise, does not seem to apply to any of the parties in 
 the events which have occurred. 
 
 Then it is a case of intestacy ; and as such, the estate is descendible 
 to those who were the heirs at law, or is distributable under the statute 
 of 1791. On the death of Charles Stanyarne, the first devisee, unmarried 
 and without issue, the devise to him failing, the fee descended to the heirs 
 at law, to await the contingencies provided for by the will. Tliese not 
 having occurred, the question recurs, who are those heirs ? Charles, the 
 first devisee, died after his mother and sister Frances, and before the 
 enactment of tli4 statute of February, 1791, which abolished the rights 
 of primogeniture. 
 
 The estate then descended to his sisters, Mary, Elizabeth and Anna, 
 subject to be defeated if the contingencies had occurred. (For Anna, 
 the survivor, never married.) The plantation or proceeds of the sale 
 must be divided into three equal parts, and paid over to the respective 
 heirs, or devisees of the said Elizabeth, Mary and Anna; and it is so 
 ordered and decreed. 
 
 The cases cited by the counsel on each side were embarrassing, as they 
 seemed to present similar circumstances ; but on examination, they are 
 not found to be identical. Indeed, few cases under wills, and depending 
 on contingencies, are ever found to be precisely alike ; and the variation 
 of a single fact, or feature in the case, often changes the right and the 
 decision. 
 
 From this decree, an appeal was taken on the ground : — 
 
 That according to the true construction of the will of William Stan- 
 yai'ne, the fee in the plantation descended, on the death of Anna Stan- 
 yarne, unmarried, to those who were then next of kin to the testator, to 
 wit : the children of Mary Freer, deceased, and of Elizabeth Wilson, 
 deceased. 
 
 Dunkin, for appellant. 
 
 Petigru, contra. 
 
 Chancellor Johnson delivered the opinion of the Court. 
 
 When the will of the testator is properly analyzed, it will be found to 
 contain the following dispositions of John's Island *plantation : — r-^icco 
 1st. To his son Charles in fee, but if he should die under twenty- ^ 
 one, and without issue ; then, 2dly. To be kept for the use, profit and 
 maintenance of the testator's wife, and unmarried children, until the day 
 YOL. I.— 50
 
 422 SOUTH CAROLINA EQUITY REPORTS. [*552 
 
 of their marriage ; and then, Sclly. To be sold, and the proceeds divided 
 equally between his wife and his surviving daughters. 
 
 Charles died under twenty-one, and without issue, leaving four sisters, 
 Elizabeth, Mary, Frances and Anna, surviving him, (his mother having 
 died before ;) Frances died afterwards, unmarried, intestate, and without 
 issue ; Elizabeth and Mary have died since, both leaving issue ; and last 
 of all, Anna died unmarried in 1836. 
 
 It seems to be conceded on all hands, that the daughter, Anna, vs^as 
 entitled to the use and profits of the plantation up to the time of her 
 death, being the only child remaining unmarried, and that the limitation 
 over to the wife and surviving daughters of the testator, must fail, 
 because at the event (the death of Anna) on which it was limited over, 
 there was no one in being, falling within the description of those entitled 
 to take. The devise to Charles, having failed also, the fee necessarily 
 reverts to the right heirs of the testator ; and the question is, whether 
 those coming within that description at the death of Charles, or the death 
 of Anna, are entitled to take. 
 
 The devise to Charles, is in terms a fee simple, defeasible in the event 
 of his dying under twenty-one, and without issue, and on his death under 
 twenty-one, and without issue, the fee necessarily reverted to the right 
 heirs of the testator, unless it vested in the wife and daughters, under the 
 devise over. That it did not, I think is very clear. In Monkhouse v. 
 Holme, 1 Bro. C. C. 298, Lord Ellenborough says, that when the time is 
 not annexed to the form, but to the substance of the gift, the interest is 
 contingent, and the true question always is, whether the event on which 
 the estate is limited over, is in the nature of a condition, without which 
 the testator would not have them to take : and there is, perhaps, no case 
 which would better illustrate the rule. The devise over here, is to the 
 wife and surviving daughters after the marriage of all his daughters, the 
 survivorship being the event, without which it is apparent the testator 
 intended they should not take. Their interest in the fee was therefore 
 merely contingent. The fee, as before remarked, vested in the right 
 heirs of the testator, on the death of Charles ; and the event on which it 
 Vi'as limited over, not having occurred, it still abides in them. Conse- 
 s^rrq-i *quently, none can take, but those who answered the description 
 ' -' of heirs at that time. All the sisters were then living and were 
 entitled to the inheritance in common. On the death of Frances, without 
 issue, and intestate, afterwards her interest vested of course in her sur- 
 viving sisters. The children of Elizabeth Wilson, their heirs, or devisees, 
 are therefore entitled to one-third of the estate ; the childen of Mary, 
 their heirs, or devisees, if any of them be dead, are entitled to one other 
 third part; and Maria A. Freer, to the remaining third, under the devise 
 from Anna. Such, I understand, is the import of the Circuit decree. 
 The appeal is therefore dismissed. 
 
 Chancellors Harper and Johnston, concurred.
 
 *553] CHARLESTON, FEBRUARY, 1837. 423 
 
 Wm. Seabrook vs. Rose, and Others. 
 
 Bill by joint owners of a steamboat against another joint owner and his attachine 
 creditors, the joint owner, defendant, having been the agent of the company, and 
 being a balance due from him to the company, on which plaintiffs claimed lieu 
 on his shares : — Held, that the plaintiff's as creditors in possession, were entitled 
 to the lien in preference to the attaching creditors. [*5;'i3] 
 
 The question considered whether owning a ship employed in trade, by several in 
 distinct shares, constitutes a partnership. Ch. De Saussure's opinion, that this 
 is a partnership, and carries with it all its legal incidents. [*555] 
 
 Heard before Chancellor De Saussure, Charleston, January Term, 
 1836, who delivered the following decree : — 
 
 The bill was filed by Win. Seabrook, and others, joint owners of the 
 steamboat or steamer "William Seabrook," to have an account from 
 M'Kenzie, also a joint owner of two shares in said steamer, who acted as 
 the agent of the company at Augusta, and was indebted to the concern 
 for a balance alleged to be due by hi'm to them. The bill states the case 
 fully, with which a copy of the agreement of the parties was filed. By 
 this instrument, each of the subscribers agreed to pay one thousand 
 dollars per share, for as many shares as he took, for the purpose of build- 
 ing and fitting up a steam packet for the conveyance of passengers and 
 freight. And it was agreed, "that no share should be transferred, or 
 assigned, without notice being first given to a majority of the stockholders 
 of the owner's intention to transfer." 
 
 The bill was taken j^fo confesso as to M'Kenzie, who was one of the 
 joint owners, and also agent of the company at Augusta, and who, it is 
 allowed, is indebted to the company for moneys received in the course 
 of the agency. He is insolvent. The creditors of M'Kenzie, and of 
 M'Kenzie & Co., (which includes Merriman,) ^issued attachments r^t^Pi'i 
 against the property of M'Kenzie as an absent debtor. L "^ 
 
 The answers of Messrs. Rose and Bonnell, the attaching creditors, 
 insist upon their rights to a priority under the attachments. They deny 
 that the plaintiffs have a right to retain the amount of the shares of 
 M'Kenzie in the steamboat "William Seabrook," either under the general 
 doctrine of partner, or as creditors in possession. On the face of the 
 instrument, the contracting parties are to be joint owners of the steamer, 
 "The William Seabrook," according to their respective shares. 
 
 The only feature in the agreement which might vary the contract, is 
 the clause, that no transfer or assignment should be made without notice 
 being first given to a majority of the stockholders, of the owner's inten- 
 tion to transfer. This does not appear to me to be such an agreement 
 as would amount to what is called a limited copartnership, (even if such 
 were allowed by our laws,) restraining the exercise of any powers which 
 joint owners have over their shares. It is a mere agreement to give 
 notice of an intended assignment. If the part owner should make such 
 transfer without notice, he may be responsible to the other owners for 
 breach of the contract, but the assignment would be good as to third 
 persons. The case then stands on the general ground of a joint owner- 
 ship. There is, however, no proof of any assignment, and the creditors 
 of Mr. M'Kenzie are not claiming under an assignment, but under attach- 
 ments against an absent debtor, owner of certain shares in the steamer 
 Seabrook.
 
 424 SOUTH CAROLINA EQUITY REPORTS. [*554 
 
 The plaintiffs insist that they are entitled to a lien on the shares 
 owned by M'Kenzie, for the alleged balance due by him to them as agent 
 of the joint owners. 
 
 1. Ou the general principles of copartnership. 
 
 2. As creditors in possession. 
 
 The first may be called a vexed question. The decisions by judges of 
 the highest character have differed. In Doddington v. Hallet, 1 Ves. 
 497, the part owners of a ship, filed their bill against the representative 
 of a deceased partner, on the ground that they had a specific lien upon 
 what should be due to the deceased partner for his share. Lord Hard- 
 wicke, upon great deliberation, decided that they had such a lien, on 
 the ground that a ship may be the subject of partnership as well as 
 anything else. 
 
 Mr. Belt, in his supplement to the cases in Vesey, sen., p. 491, 
 ^----j ^states that the decision, by Lord Hardwicke, in Doddington v. 
 ■^ Hallet, that "part owners in a ship are partners, and liable in 
 solido, for all goods furnished and repairs," has been overruled on great 
 consideration by Lord Eldon, in the case Ex parte Young, 2 Yesey & 
 Beanies, p. 242. And on examining that case, it appears that Mr. Belt 
 is correct in so stating it. 
 
 The case Ux parte Young is indeed precisely the case we are now con- 
 sidering. The petitioners were part owners of a ship with other persons, 
 two of whom became bankrupt. The bankrupts were also managing 
 owners, and in that character were indebted to the petitioners, and the 
 other owners of the ship, £28*7, on balance of accounts, for the freight 
 and earnings of the ship, after taking credit for the outfit amounting to 
 £2234, which sum the bankrupts had not paid, and the other owners 
 were obliged to pay it. The petition prayed the application of the pro- 
 ceeds of the share of the bankrupts in the ship, freight, &c., towards 
 satisfaction of the sums due to the petitioners and the other owners. 
 
 After an argument by the ablest counsel, Lord Eldon stated that the 
 difficulty in the case arose from the decision of Doddington and Hallet, 
 by Lord Chancellor Hardwicke, which teas directly in point. Lord 
 Eldon at first said he doubted, though there was great difQculty in the 
 case, and the inclination of his mind was against the doctrine of Lord 
 Hardwicke, which he knew was his most deliberate opinion, after great 
 consideration ; and there was no decree in equity contradicting that. 
 Afterwards, in a few days, Lord Eldon said, that after great considera- 
 tion, he mast decide against the case of Doddington v. Hallet. 
 
 It is exceedingly embarrassing to a judge, administering the justice of 
 the country, to find such able and learned Chancellors differing in opinion 
 so widely, and indeed so directly opposite. With much hesitation, I 
 should feel myself, however, under such circumstances, at liberty to follow 
 that opinion which, in my judgment, was most consistent with sound 
 principles ; and it does appear to me, that the judgment of Lord Hard- 
 wicke is the most so, on the point in question — for I concur with him in 
 opinion, " That a ship may be the subject of partnership as well as any- 
 thing else, the hire and earnings thereof being proper subject for trade ; 
 and letting a ship to freight as much a trade as any other ; then it appears 
 plainly to be a partnership among them, and the ship itself to be part of 
 the subject thereof."
 
 *056] CHARLESTON, FEBRUARY, 1837. 425 
 
 *The definition of a partnership seems to inclnde a joint inte- r^:--,, 
 rest in this species of property, as well as any other kind, Mr. '- 
 Carey, in his Treatise (in the Law Library), states that a partnershij) 
 may be g-enerally defined to be " a volnntary association of two or more 
 individuals for the purpose of lawful trade, in which each person is to 
 receive and bear his proportional ratio of profit and loss." The interest 
 of each partner in the partnership is his share in the surplus after a set- 
 tlement of the co-partnership accounts : and that interest alone is liable 
 to the separate creditors of each partner — 20 Johns. Hep. GIL It does 
 not appear to me, I confess, that there is any solid reason why ships 
 should not be, as Lord Hardwicke stated, a subject of co-partnership. 
 To make that species of property, and the interests of different persons 
 in it, an exception to the rule, and out of the reach of the rules and 
 principles applicable to other kinds of personal property (and in some 
 cases even of real property) held in co-partnership, seems to me only to 
 multiply distinctions and exceptions in the broad system of principles, 
 and to increase difficulties and litigation. 
 
 I am relieved in some measure from my difficulties, in this conflict of 
 authorities and ])rinciples, by the American decision. In NicoU v. Mum- 
 ford, 4 Johns. Chan. Rep. 522, it was held by the Chancellor, professedly 
 on the later English authorities, that ship owners were tenants in common, 
 and were not to be considered as partners, not liable for each other in 
 solido, nor entitled in the settlement of accounts, on the principle of 
 partnership ; the doctrine of Lord Hardwicke, in Doddington v. llallet, 
 being considered as overruled by the modern decisions, and by the uni- 
 versal understanding of the commercial world. But, when (as Chancel- 
 lor Kent states in his admirable Commentaries, 3 vol. p. 40) the case of 
 Nicoll V. Mumford came to be examined in the Courts of Errors, in Xew 
 York (20 Johns. Rep. 611), the doctrine of Lord Hardwicke was con- 
 sidered by the majority of the judges to be the better doctrine, and they 
 decided accordingly, and reversed the decree of the Chancellor. The 
 case of Lamb v. Durant, in 12 Mass. Rep. 54, was decided on the ground, 
 that vessels as well as other property might be held in strict partnership, 
 with all the control in each partner incident to commercial co-})artner- 
 ships. 
 
 Even lands may be made the subject of co-partnership, and sul)ject to 
 the rules applicable to those connexions. — (See 3 Kent's Com. 38, in 
 which he cites various decisions which establish that.) *See II r*55>T 
 Mass. Rep. 469, and 2 Munford, 38T ; and Winslow v. Chiffelle, L 
 State Rep. in Equity, 25, (1824,) which decided that in case of a mill 
 held in co-partnership, that it was subject to be applied like other part- 
 nership property. And even Lord Tenterden (see Abbott on Shipping, 
 81,) gives to the ownership of vessels one of the essential attributes of a 
 partnership. Chancellor Kent (3 v. 38) considers those decisions as an 
 entire subversion of the equity doctrine now prevalent in England. This 
 is undoubtedly true ; and I am content to be supported by Lord Hard- 
 wicke and the American Courts. 
 
 The result is, that I am of opinion the ])laintiffs are entitled to the 
 relief which they seek by their bill, on this ground ; and I am inclined to 
 think also on the ground of creditors in possession, as against the attach- 
 ing creditors. It is therefore ordered and decreed, that it be referred to
 
 426 SOUTH CAKOLINA EQUITY REPORTS. [*557 
 
 the Commissioner or Master to examine the accounts between the par- 
 ties, and to report whether any sum, and how much, is due by M'Kenzie, 
 as agent, or otherwise, to the co-partnership — and that the two shares 
 held by him in the steamer William Seabrook, be held liable for such 
 amount, and the costs of the suit. 
 
 Defendants appealed on the following grounds : — 
 
 1. That by the decree, an account is ordered to be taken between 
 A. M'Kenzie, and the owners of the William Seabrook, as partners. 
 Whereas in point of fact there was no agreement of partnership. 
 
 2. That the decree declares the attaching creditors of M'Kenzie, to be 
 entitled to no more than the residuum that may be coming to him as a 
 partner in the stock held by the owners of the William Seabrook, after 
 the payment of all such sums as he may be indebted in to the company. 
 Whereas, seeing that M'Kenzie is a tenant in common with Seabrook, of 
 two shares in the steamboat, and that Rose has got a lien on those shares 
 by his attachment, it follows necessarily, as a legal conclusion, that Rose 
 is entitled to the money for which those shares may be sold, and that if 
 any account is to be taken, it should be confined to the earnings and dis- 
 bursements of the boat, since the attachment. 
 
 Petigrii, for appellant. 
 
 King, contra. 
 
 ^rf.^-1 *Chancellor Johnston delivered the opinion of the Court. 
 
 -I The Court does not feel prepared to give an opinion on the 
 first point discussed by the Chancellor who tried this cause. The ques- 
 tion is not, really, as it has often been conceived to be, whether a ship 
 may be the subject of partnership ; for no doubt any species of property 
 whatever, may be held in partnership. But the question is, whether a 
 ship, owned in distinct shares and employed in trade, is, as between the 
 owners, partnership property, or liable to be so regarded by creditors, 
 beyond certain specified limits. On this point the Court gives no 
 opinion, because it is entirely satisfied that the plaintiffs are entitled, as 
 credi4;ors in possession, to the decree they have obtained. 
 The motion is dismissed. 
 
 Chancellors Johnson and Harper, concurred. 
 
 Bank of the United States, Bank of the State of South Caro- 
 lina, and the State Bank, v. Charles T. Brown, and his Wife, 
 
 Mrs. S. E. Brown, and their children, and Stevens, Trustee, 
 
 and Others. 
 
 Husband being indebted, by deed expressed to be in consideration of love and 
 ajfection, settled a plantation and slaves on his wife. He was then negotiating a 
 sale of a large real and personal estate acquired by his wife, which was afterwards 
 made ; and this deed was the inducement of the wife to renounce her inheritance 
 on the sale of her real estate : on a bill by the creditors of the husband to set 
 aside the settlement as voluntary and fraudulent, and to subject the property to 
 his debts: — Ildd, that parol evidence was admissible to show that the true con-
 
 *558] CHARLESTON, FEBRUARY, IS 37. 427 
 
 sideration of the deed was the wife's renunciation of her inheritance, an<l that 
 such consideration was sufficient to support the deed ajrainst the creditors. [*.')t;'J] 
 
 A deed without any consideration at its execution may be supported by parol proof 
 of a subsequent valuable consideration, [^-jij^] 
 
 The registry acts requiring marriage settlements to be recorded, &c., apply only to 
 settlements founded on the consideration of marriage and entered into before 
 marriage, or afterwards in pursuance of articles before, and to voluntary con- 
 veyances by the husband to the wife. A settlement by the husband after mar- 
 riage in consideration of his wife's renunciation of inheritance in her real estate, 
 need not be recorded as a marriage settlement. [*5(Jo] 
 
 And the same reasons apply to and will sustain a deed of a house and lot purchased 
 by funds derived from the estate of the wife's father, no provision having previ- 
 ously been made for her ; and to another deed by the husband settling other 
 slaves on her, expressed to be in consideration of her renunciation of inheritance. 
 [*506] 
 
 The husband may not make an unreasonable settlement on his wife to defraud his 
 creditors — a settlement of less than one-half the value of the fortune he acquired 
 by his wife, is not an unreasonable provision. [*566] 
 
 Heard at Charleston, May Term, 1835 — before Chancellor De Saus- 
 SURE, who delivered the following decree : — 
 
 The bill is filed in this case by the bank creditors of Mr. Charles T. 
 Brown, to set aside certain deeds and conveyances stated in the bill as 
 void against creditors, being post nuptial settlements made or obtained 
 by a husband who was indebted at the time ; and also, not duly recorded. 
 
 The first deed which I shall notice, is among the last in date, but most 
 easily disposed of — that of the 10th November, 1829, by which Charles 
 Brown, conveyed to J. A. Keith and P. T. Keith, a plantation at Goose 
 Creek, and forty-one negroes, in consideration of natural love and affec- 
 tion. The deed was recorded on "Ith December, 1829, in the office of the 
 Secretary of State, on 15th December, 1829, in Charleston, office of 
 mesne conveyance; and on 21st December, 1829, at Georgetown. There 
 were debts subsisting against Mr. Charles T. Brown, at that time. The 
 deed *\vas purely voluntary, and this part of the case was properly r;ic - - q 
 abandoned by the counsel, and the property must be subjected to ^ "^ 
 the claims of the creditors. 
 
 The next is the deed of the 1st of June, 1824, by which Mr. Benjamin 
 Elliott, the Commissioner in Equity, conveyed a house and lot in Charles- 
 ton, at the corner of George and Anson streets, in consideration of $11,- 
 000, to S. N. Stevens, in trust, for Mrs. S. A. Brown, during her life to 
 her sole and separate use, remainder to her children by C. T. Brown, 
 and their heirs. This deed was recorded in the office of mesne convey- 
 ance, on the 16th of July, 1824. If this be a valid deed, it will protect 
 the property in question, from the claims of plaintiffs. That depends 
 upon whether it is to be considered a marriage settlement. For if it is, 
 it cannot be sustained, for it was not recorded according to the statutes 
 requiring and regulating the record of marriage settlements. The deed 
 vras not made by the husband. The property never was vested in him. 
 It was bought and paid for by the money of Mrs. Brown in the hands of 
 the administrator of the estate, who gave it according to his testimony, 
 expressly to pay for the house and lot, and to take the conveyance to a 
 trustee for the wife and children. The administrator was not bound to 
 pay the money to the husband without a settlement, and if, instead of re- 
 quiring a settlement, he laid the money out in land for the lady and her
 
 428 SOUTH CAROLINA EQUITY REPORTS. [*5u9 
 
 children, it would liave been ,Q,-ood and not subject to the claims of the 
 husband, or his creditors. This was done by the Court in Price and 
 White, Carolina Law Jour., 297. It appears to me, therefore, that this 
 deed must be sustained, and tlie property held for Mrs. Brown and her 
 children, not subject to the debts of the husband. 
 
 The next deed is that of the 19th of January, 1825, executed by 
 Charles T. Brown to trustees, by which, in consideration of love and af- 
 fection, he conveyed to them Sandy Island plantation and forty negroes, 
 in trust, for his wife for life, to her sole and separate use, remainder to 
 her children by Mr. Brown, and their heirs. 
 
 It was contended for the defendants, that this was not a marriage set- 
 tlement : and it was important to insist on that, because, if it should be 
 considered a marriage settlement, it was not recorded according to law; 
 for it was recorded in the office of mesne conveyances at Georgetown 
 alone. An attempt was made to supply this defect by proceedings in 
 Court, which were stated. The deed however, acquired no additional 
 strength by these proceedings, and must be decided upon its own merits. 
 *'=iRni *"'"*' ^PPsars to me, to come clearly within the statutes, and can- 
 -■ not be sustained. It preceded the renunciation of her inheritance 
 by Mrs, Brown, to her own large real' estate, and cannot, I think, be made 
 to come within the idea of a purchase, even with the aid given to the 
 case by the evidence, and by the powerful argument of counsel. 
 
 I would willingly protect this lady and her children if I could, as she 
 carried so large an estate in marriage to her husband. But the laws, for 
 wise reasons, prescribe the course which should be pursued to make 
 family arrangements, and to secure their legal authenticity without pre- 
 judice to third persons and creditors. If these regulations are neglected, 
 and injury results to the family, it is the fault of those who ought to have 
 interposed and acted more cautiously. The conveyance was in consider- 
 ation of love and affection, and Mr. Brown was then largely indebted, 
 and no proof that the money of the estate was applied to pay for the 
 property. 
 
 I am of opinion that this property must, according to the decided 
 cases, be subjected to the demands of the creditors. The decision in 
 Prescott and Hubbell,(a) went very far, and is with difficulty, reconciled 
 to other decisions, and does not conclude this case. 
 
 The next deed is of the date of Tth of February, 1826, by which 
 Robert Heriot, the Commissioner in Eciuity, conveys to J, A. Keith, 
 and J. T. Keith, twenty-nine negroes, for the consideration of $10,017, 
 in trust, for the use of Mrs. Brown and her children. This deed recites, 
 that Mrs. Brown had renounced her inheritance in her real estate, and 
 her husband got the benefit of it : That these negroes were bought with 
 the funds of her father's estate, and she was entitled to this provision, as 
 a purchaser. This is a difficult part of the case. If we consider the 
 deed as a marriage settlement, then not being recorded, according to the 
 statute of 1823, it would be void. It appears to me however, to have 
 been a purchase, in consideration of the wife's renunciation of her inheri- 
 tance in real estate of large value. The property in question, never was 
 vested in Mr. Brown, but passed directly from Mr. Heriot, the grantor, 
 
 (a) Not reported.
 
 *560] CHARLESTON, FEBRUARY, 1837. 429 
 
 to the trustees, for Mrs. Brown; and the prcsnm])tion, that it was paid 
 for out of the estate of Mrs. Brown, founded on the state of thing\s, and 
 on the want of private funds by Mr. l^rown, and on the evidence, satis-. 
 fies my mind. It appears to me therefore, though doubtfully, tliat this 
 deed is valid as a purchase, and must be sustained against the cUiims of 
 creditors. 
 
 *It is therefore ordered and decreed, that so much of the bill rH.r/.i 
 of complaint as seeks to set aside the conveyance of the 1st of l 
 June, 1824, for the house and lot in Charleston, and to subject tlie same 
 to the claims and liens of creditors of Charles T. Brown ; and so much 
 of the bill as seeks to set aside the conveyance of the Ttli of February, 
 1826, for twenty-nine slaves, and to subject the same to said creditors, be 
 dismissed. 
 
 It is further ordered and decreed, that the property and estates com- 
 prehended in the deeds of the 19th of January, 1825, to wit, Sandy Is- 
 land and forty slaves; and in the deed of 10th of November, 1829, to 
 wit, the Goose Creek plantation, and forty-one slaves, be, and are hereby 
 subjected to the creditors of said Charles T. Brown, according to their 
 legal liens ; and that the same be sold to satisfy the said debts, at the 
 next sale day, or at such times and places, and on such terms, as the 
 Court may direct, under any arrangement made between the parties. — 
 Costs to be paid by defendants. 
 
 From so much of this decree as subjects Sandy Island and negroes to 
 the creditors of Brown, the defendants, trustees for the wife and children, 
 appeal, and hope the same may be reversed, for the following, among 
 other reasons : — 
 
 1. That the said deed is not, in any sense of the term, a marriage set- 
 tlement, but a purchase by the husband of the wife's inheritance. 
 
 2. That it was competent for the defendants to prove a consideration 
 for the said deed, beyond the consideration stated in the deed itself; and 
 that tlie evidence is sufficient to establish that the said deed was the con- 
 sideration for Mrs. Brown's release of her inheritance. That the consid- 
 eration thus received by Mrs. Brown was reasonable, and no injury was 
 done to the creditors of Mr. Brown, as they have had the benelit of the 
 large fortune which Mr. Brown acquired by marriage. 
 
 The [)laintiffs likewise appeal from that part of the decree which dis- 
 misses so much of their bill as seeks to set aside the settlement of a 
 house and lot of land in Charleston, contained in the deed of 1st of June, 
 1824 ; and the settlement of twenty-nine slaves, contained in the deed of 
 "Ith of February, 1826, and to subject the said land and negroes to the 
 plaintiifs' demand ; and they move that such part of said decree may be 
 reversed, and the said *land and negroes be ordered to be sold for pxccg.^ 
 the payment of the debts to plaintiffs, on the following grounds : — L 
 
 1. That the said land and slaves were purchased with the funds of de- 
 fendant Charles T. Brown, and the settlements were therefore, without 
 any valuable or sufficient consideration to support the same ; and having 
 been made after his indebtedness to the plaintiff's had commenced, are 
 fraudulent and void. 
 
 2. That the settlements embodied in the said deeds are also void, for 
 not being duly recorded in the offices of the Secretary of State and Reg-
 
 430 SOUTH CAROLINA EQUITY REPORTS. [*562 
 
 ister of Mesne Conveyances, conformably to the provisions of the Acts of 
 the General Assembly, in such case made and provided. 
 
 3. That the decree, in the particulars above mentioned, is in other re- 
 spects contrary to law and equity, and good conscience. 
 
 Eggleston and Frost, for defendants. 
 
 De Saussure and Bailey, for plaintiffs. 
 
 Chancellor Johnston delivered the opinion of the Court. 
 
 The grounds of the defendants' appeal grew out of a deed executed by 
 the defendant, Brown, on the 19th of January, 1825, by which he con- 
 veyed to trustees, for the use of his wife, a plantation on Sandy Island, 
 and forty slaves. The consideration expressed is natural love and affec- 
 tion, but the proof is very abundant that Brown was, at the time, nego- 
 tiating the sale of a large real and personal estate, which he afterwards 
 sold for $120,000, and which he had acquired by the wife ; and that the 
 deed above-mentioned, was the inducement to Mrs. Brown to join in the 
 conveyance of the land to Col. Hunt, and renounce her inheritance, and 
 that this was the true consideration. 
 
 As a mere voluntary conveyance for the use of the wife, the deed 
 would necessarily be void as to the creditors of Brown ; and regarded as 
 a marriage settlement, it was equally void, not having iDcen recorded in 
 the office of the Secretary of State ; the questions then arise : — 
 
 1. Whether parol evidence was admissible, to show that Mrs. Brown's 
 renunciation of her inheritance entered into the consideration of the deed, 
 and whether that is a sufficient consideration to support the deed against 
 creditors. 
 
 ^rpo-1 *2. If the consideration be valuable, whether the deed ought to 
 -I have been recorded in the office of the Secretary of State, as a 
 marriage settlement. 
 
 The general rule is, that parol evidence is inadmissible, to add "to, or 
 vary the terms of a deed, or to show any circumstances inconsistent with 
 it; and if the converse of the rule be true, it follows, that anything may 
 be admitted which is consistent with it. On this principle, parol evi- 
 dence has been admitted to supply a consideration, where none has been 
 expressed in the deed, and to show a particular consideration where that 
 expressed was general, as for " divers good causes and considerations." 
 1 Phil. 481-2-3. And I cannot perceive why, if there are two consider- 
 ations existing at the time of the execution of the deed, one only of which 
 is expressed, parol should be admitted to show the other and better. So 
 far from tending to contradict the deed, its object is to support it, and 
 must necessarily be consistent with it — the addition of a circumstance 
 necessary to give it effect. And it strikes me, that this is the more rea- 
 sonable where it is a third party, a stranger, who seeks to avoid the deed 
 on account of the want of consideration. The case does not rest, how- 
 ever, entirely on this question, and it is not necessary to decide it. The 
 true consideration of the renunciation of Mrs. Brown's inheritance in her 
 real estate, was subsequent to the execution of the deed of 19th January, 
 1825, and I take it as well settled, that a deed void for want of consider- 
 ation, may be supported by parol proof of a subsequent valuable con- 
 sideration. In this, there is clearly nothing inconsistent with the deed,
 
 *563] 
 
 CHARLESTON, FEBRUARY, 1837. 431 
 
 but the proof of a substantive independent fact, arisinc; subsequently to 
 its execution. This point is expressly relied on in M'Dowall iiml Black 
 V. Gist, decided not lonjz: since in Columbia, and to which I refer for the 
 argument Atherly, in his treatise on Marriage Settlements, i)age 159, 
 iu speaking of the consideration necessary to supi)ort settlements after 
 marriage, says that giving up an interest in the settler's estate will be 
 a sufficient consideration, although it is not expressly relin((uished in 
 consideration of the settlements, and although not relinquished by the 
 same deed, or another at the same time ; for if it is done about the same 
 time, so that it be reasonably presumed to be part of the same transaction, 
 it would be presumed so, and looked upon as the consideration which 
 produced the settlement. 
 
 Jfow, had the settlement preceded the relinquishment of Mrs. r*K/> < 
 *Brown's inheritance, independent of the parol proof, these deeds ^ 
 furnish very strong intrinsic evidence of the true consideration. There 
 is another principle on which this deed may be supported. The plain- 
 tiffs come here to be relieved against an advantage which the defendants 
 possessed at law, on the ground that the consideration being love and 
 affection only, the deed is void as to creditors. Now, the proof is very 
 conclusive, that Mrs. Brown renounced her inheritance on the faith that 
 a provision had been made for her by this deed. The witness. Smith, 
 says expressly, that she would not have renounced but on that assurance ; 
 and if evidence of this fact is admissible, it is very clear that the right 
 and justice of the cause is with her. In the Marquis of Towushend i\ 
 Stangroom, 6 Yes. 328, which was a bill for the specific performance of 
 an agreement to lease a farm. Lord Eldon admitted parol evidence, to 
 show that the written agreement was not according to the terms 
 stipulated in the treaty ; and he observes, that if parol evidence is to 
 be excluded in equity because it is at law, all the cases of hard bargains, 
 unconscionable agreements, and agreements entered into by mistake or 
 surprise, must be struck out : and he refers to a MS. note of Lord 
 Hardwicke, in the case of Rich v. Jackson, in which his lordship says 
 that he had often known parol evidence in cases where an attempt had been 
 made to obtain by a decree of the Court a further security or more ample 
 interest than the party was in, by the possession of the paper itself, to show 
 that the demand was fraudulent and unfair — and in which relief had been 
 refused on that ground. This is exactly that case. The ])laintiirs come 
 here to ask the Court to set aside the deed of the 19th January, 1825, 
 that they may be let in as creditors of Brown. The effect must be to 
 deprive Mrs. Brown of the equivalent for which she stipulated when she 
 release her inheritance in a very ample estate, and reduced her to a state 
 of comparative want. I think she is protected by the principle. 
 
 In Prescott v. Hubbell,(a) decided in this Court in 182t, it was held 
 that a conveyance by the husband to the use of the wife, iu consideration 
 of her renouncing her dower in lands which he had sold, was sufficient to 
 support the conveyance against the creditors of the husband. So in 
 M'Meekin v. Edmonds, 1 Hill Ch. 288, where the land of the husband 
 was sold by the sheriff under execution, and the purchaser, a stranger, 
 conveyed to trustees *for the use of the wife, the husband having r^sgK 
 paid the principal part of the purchase-money, it was held that '- 
 
 (a) Not reported.
 
 432 SOUTH CAROLINA EQUITY REPORTS. [*505 
 
 the conveyance was good against the creditors of the husband ; and it 
 follows, that the renunciation of the wife's inheritance in her own lands, 
 and of which no power can deprive her but with her own consent, must 
 be equally valid. Our registry Act requires " all marriage settlements" 
 should be recorded in the office of the Secretary of State, within a limited 
 time after they are executed, and declares that they shall be void unless 
 they are so recorded. But there is some diversity of opinion as to what 
 constitutes a marriage settlement, within the meaning of the Act. Prima 
 facie, the terms obviously import a settlement founded on the considera- 
 tion of marriage ; and could not, therefore, directly apply to settlements 
 entered into after the marriage, unless made in pursuance of articles pre- 
 viously entered into ; but in Price v. White, Car. Law Journal, 29*7, it 
 was held that a voluntary settlement made by the husband after marriage 
 to the use of his wife, was within the mischiefs contemplated by the statute, 
 and was void unless so recorded. That, I then and still think, was going 
 quite far enough, — extending the construction of the statute to its utmost 
 limits. It never could have been intended to apply to all conveyances 
 for the use of a married woman. If a parent thinks proper to convey or 
 devise an estate to the separate use of his married daughters, with what 
 propriety is that denominated a marriage settlement ? Marriage does 
 not enter into the consideration; and did the Legislature in framing the 
 Act, contemplate this state of things, and intend to provide for it under 
 the term "marriage settlement?" I think not — they might, and would 
 have employed more appropriate terms. So, if a stranger convey to the 
 use of a married woman, or if she invest her pin-money, or her other 
 separate funds in lands, and procure them to be conveyed to trustees to 
 her separate use, what could be more foreign than the terms " marriage 
 settlement," applied to these transactions ? But the cases of Prescott v. 
 Hubbell, and M'Meekin v. Edmonds, are direct authorities on the point. 
 They are not marriage settlements within the meaning of the Act; and in 
 what do these cases differ from the case where the wife acquires an estate 
 in exchange for her inheritance, whether she obtains it from her husband 
 or a stranger ? 
 
 I conclude, therefore, that no settlement or conveyance falls within the 
 *5661 P*^^'^^^^ ^^ ^^^6 -^ct, except such as are founded on the *consider- 
 -' ation of marriage, and entered into before the marriage, or after- 
 wards, in pursuance of previous articles, or voluntary conveyances by the 
 husband to the use of the wife, afrer the marriage. 
 
 The grounds of appeal, on the part of the plaintiffs, are entirely covered 
 by the foregoing observations. William S. Smith, the administrator of 
 George Smith, the father of Mrs. Brown, advanced to Brown $11,000, to 
 purchase a house in town, to be conveyed to the use of Mrs. Brown ; and 
 he did, accordingly, so invest it. No provision having been before made 
 on Mrs. Brown, the administrator was right in insisting on these terms. 
 The conveyance of Robert Heriot to Keith, of twenty-nine negroes to the 
 use of Mrs. Brown, is expressed to be in consideration of the renunciation 
 of her inheritance ; and on the principles laid down, the consideration in 
 both cases are valid against creditors^, nor was it necessary to record the 
 deed in the office of the Secretary of State. 
 
 In the discussion of the case, some remarks were made by the counsel, 
 as to the magnitude of the provision made by those deeds for Mrs. Brown ;
 
 *566] CHARLESTON", FEBRUARY, 1837. 433 
 
 and clearly the law would not justify the husband in attemptiiifj to defraud 
 his creditors by using the interests of the wife, "as a cover for niakini;' an 
 unreasonable settlemeut on her. But it will be remenil)ered that Mrs. 
 Brown was wholly unprovided for — that on the death of her father, intes- 
 tate, an estate, consisting- of lands, estimated at $60,000, which when sold 
 with a part of the negroes only, brought the large sum of §120,000, 
 descended to her, and that the highest conjectural estimate of the value of 
 the i)ro})erty secured to her, does not exceed $45,000. No direct ques- 
 tion has been made on the subject. It is therefore unnecessary to enter 
 into a minute calculation of the reasonableness of the provision ; and I 
 confess, that under the circumstances, I should not be disposed to look 
 into it with too much exactness. With proper diligence the creditors 
 might have saved themselves out of the large estate which Brown has 
 dissipated. 
 
 It is therefore ordered and decreed, that so much of the decree of the 
 Circuit Court as subjects the lands and negroes described in the deed, 
 from the defendant Brown, to John A. and P. T. Keith, of the 19th 
 January, 1825, with the payment of Brown's debts, be, and the same is 
 hereby set aside and reversed. In other respects it is affirmed. 
 
 Chancellors Harper and Johnston, concurred. 
 
 *SoPHiA C. Messervey, and Others, v. J. A. Barelli, and 
 Sophia Messervey. 
 
 [*5GT 
 
 Plaintiffs and their mother being jointly entitled to an estate the latter administered, 
 and proceedings in equity for partition y^ere had in which the mother was 
 appointed guardian of her infant children, and a sale was ordered for one-third 
 cash, and credit for the balance with bond and mortgage to secure the purchases. 
 At the sale the mother purchased the principal part of the estate, both real and 
 personal, and gave bond and mortgage for the real, but paid no money, and after- 
 wards had the bond and mortgage assigned to herself as guardian, gave her receipt 
 to the Commissioner as such, for the shares of her children, and took titles. 
 Defendant knowing the terms of the sale, (having acted as agent of the mother in 
 the management of the estate,) and that no money was in fact paid, obtained a 
 mortgage on the real estate purchased by her, to secure a debt due by her indi- 
 vidually : Held, that the mortgage of the defendant must be postponed until plain- 
 tiff's claims are satisfied. [*5*J7] 
 
 Where the Commissioner, under the order of the Court to deliver to the guardian the 
 portion of her wards, whether in money or bonds, delivered up the guardian's 
 bond given for purchases on sales for petition, this is not a discharge of the bond 
 and a satisfaction of the mortgage to secure it ; and defenuant, with a knowledge 
 of the facts taking a mortgage from the guardian of the property purchased, takes 
 subject to the equities of the wards. ["574] 
 
 The Act of 1791 prescribing in partition gives a lien on the land for the purchase 
 money, whether the sale be for cash or on credit. And tlie fact that tlie guardian 
 and Commissioner interchanged receipts, will not in equity be regarded as a pay- 
 ment so as to extinguish this security. [*675] 
 
 The Commissioner having in his report on the sales in partition, stated that he had 
 paid over her share to a distributee who was of full age, and the report confirmed 
 is not an adjudication which will conclude plaintiff' as to the fact of payment, that 
 was not referred to the Commissioner, and was not in issue. And the confirma- 
 tion was not intended to establish the fact of payment, but to approve it if done. 
 [*580]
 
 434: SOUTH CAROLINA EQUITY REPORTS. [*567 
 
 The real estate of the guardian purchased at the partition sale and mortgaged, first 
 ordered to be sold and applied to the plaintiifs' claims before that mortgaged by- 
 guardian to defendant. [*58:2] 
 
 Irregularities in form, cannot be taken advantage of after answering to the merits 
 of the bill. [*583] 
 
 Charleston, May Terra, 1836. 
 
 The following Circuit degree, presents a full statement of the case : — 
 
 Johnson, Chancellor. In 1828, the late Capt. Messervey, of Charles- 
 ton, died intestate, seized and possessed of real and personal estate of 
 considerable value, distributable amongst the defendant, Sophia his 
 widow, and six children, who are the plaintiffs in this bill. Adminis- 
 tration of his estate was granted to the defendant, Sophia, and by an 
 order of this Court, at January Term, 1830, she was appointed guardian 
 of all the minor children, being the whole of the plaintiffs, except Sophia 
 and thus became possessed of the personal estate, and entitled to receive 
 the rents, issues and profits of the real estate. In May, 1829, the plain- 
 tiff, Sophia C, filed her bill in this Court, on behalf of herself and the 
 infant children of the intestate, praying a sale of the whole estate, real 
 and personal, for the purpose of making partition, and the defendant, 
 Sophia, answering that bill, assented that an order for the sale of the 
 estate might be made for that purpose, and on the recommendation of 
 Mr. Commissioner Hunt, the whole estate, was, at the same time, ordered 
 to be sold, except the furniture, for one-third cash, balance on bond and 
 mortgage, payable in one and two years, the real estate to be insured, 
 and the policy to be assigned to the Commissioner, for the benefit of the 
 parties ; that the portions of the minor children, whether in money or 
 iDonds, or both, be paid and delivered over to the defendant, Sophia, 
 their guardian, on her entering into bond, if that had not already been 
 done, with sufficient security for the faithful discharge of her duties as 
 guardian ; and that the furniture should be sold for cash, on the 12th 
 January, 1830. Hunt the Commissioner, reported to the Court, that he 
 had, in pursuance of the order of the Court sold the whole estate, and 
 that the same had been purchased by the defendant, Sophia, at the gross 
 *^r8l ^^^"^ ^^ $12,835 72 *and that he had paid to defendant, Sophia, 
 -I one-third part of the proceeds, as her distributive share, and also 
 the shares of her wards, the minor children of the intestate ; and to the 
 plaintiff, Sophia, who was then of age, her share or portion. The Com- 
 missioner also reported, that he had investigated the accounts of defendant, 
 Sophia, as administratrix of the estate, and found that the balance of 
 $2,374 93 cents, was the distributive share of each child, of the whole 
 estate, real and personal ; and that the defendant, Sophia, had received 
 that amount on account of each of her wards ; and that he had paid over 
 a like sum to the plaintiff, Sophia C, and recommended that the 
 defendant, Sophia, should be discharged from her administration, and 
 account annully with the Commissioner, for the estate of her wards — 
 which report was confirmed by the order of the Court. The plaintiff, 
 Sophia C, avers that so much of the foregoing report as represents that 
 her portion of the estate was paid to her, or that the same was actually 
 paid to her, is not true in point of fact, and that she has not received the 
 same or any part of it, and defies the production of any evidence to show
 
 *56S] 
 
 CHARLESTON, FEBRUARY, 1837. 435 
 
 it ; but on the contrary, she was always under the impression, that lier 
 portion had been paid to her mother, the defendant, Sopliia, with that of 
 the minor chiklren ; and believed that the orders of the Court, reciuiring 
 the defendant, Sopliia, to give a guardianship bond and security, and the. 
 purchaser at the Commissioner's sale to pay one-third cash and to give 
 bond and mortgage for the balance, had been strictly complied with. 
 And the bill charges, that the defendant, Sophia, combining and con- 
 federating with defendant, Barelli, so far from complying with the terms 
 of the order directing and requiring her to give bond and security, for the 
 faithful discharge of her duty as guardian of her infant children, executed 
 the said bond in her own name, but without any warrant or authority 
 signed and sealed it, in the name of one Susannah Gleize, her sister, 
 whereby the said bond is without the required security : nor did she give 
 bond and mortgage for her purchases at the Commissioner's sale, as 
 required by the order for sale ; nor has she accounted with the proper 
 officer of the Court for her management of the estate of her wards ; and 
 the plaintiffs suppose and believe, that no conveyance was ever executed 
 by the Commissioner to defendant, Sophia, for the property purchased 
 at his sale. The bill further charges, that defendant, Sophia, having 
 become indebted to her co-defendant, Barelli, on the 20th May, 
 *1830, executed to him a penal bond, conditioned for the payment r:j</rnq 
 of $5,008 50, and to secure the payment thereof, mortgaged to the ^ 
 said Barelli, a three story brick building in Tradd street ; a lot of land 
 on the east side of Meeting street, at the corner of Cumberland and 
 Meeting streets ; and a two story brick house and lot on the east side of 
 Meeting street, No. 120 — of all which, the intestate was seized at the 
 time of his death, and being part of the real estate purchased by de- 
 fendant, Sophia, at the sale of the Commissioner. That the defendant, 
 Barelli, was upon the most intimate terms of friendship with defendant, 
 Sophia, and acted as her agent in the management of the said estate, as 
 appears from his own advertisement, published in the Charleston 
 Courier of the 24th and 27th January, 1829, in which he desires all 
 persons who are indebted to the estate to make payment to him, and 
 those to whom the estate was indebted to present their accounts properly 
 attested. The bill further charges, that at the time the defendant, 
 Barelli, took the said mortgage, he knew and was informed, that the 
 premises were part of the estate of the intestate, and was privy to all the 
 circumstances attending the sale by the Commissioner, and the purchase 
 by the defendant, Sophia ; but had notwithstanding procured, in a 
 judicial proceeding in the Court of Common Pleas, an order for the sale 
 of the premises, to foreclose the equity of redemption, and that in pur- 
 suance thereof, the premises had been advertised for sale by the sheriff 
 under instructions from defendant, Barelli. The bill prays, amongst 
 other things, that defendant, Sophia, may account for the plaintilfs' 
 respective portions of the estate, and that she be required to give a new 
 guardianship bond, with sufficient security to cover all the demands 
 against her, that the sales of the real estate be set aside as fraudulent ; 
 or that defendant, Sophia, be required to give a mortgage of the property 
 purchased by her at the Commissioner's sale, as of the day of sale, and 
 that the mortgage from her to defendant, Barelli, may be decreed to be 
 null and void, as far as regards the claims of the plaintiffs : that the de-
 
 436 SOUTH CAROLINA EQUITY REPORTS. [*569 
 
 fendant, Barelli, be enjoined from selling the premises under the order 
 obtained at law, to foreclose his mortgage — and for general relief. 
 The defendant, Sophia, has not answered. The defendant, Barelli, 
 answering, admits the death of Capt. Messervey, intestate, leaving 
 the estate and family stated in the bill, and understood that the estate 
 i^r^Q-i was to be settled by a proceeding in the Court of Equity, *and 
 
 -J that defendant, Sophia, was advised to become the guardian of 
 her minor children, and supposed that every thing done under the 
 sanction of the Court was correctly done, but was otherwise a 
 stranger to the proceedings. He denies all combination with Sophia, 
 and states, that having become largely indebted to him, she gave the 
 bond and mortgage, stated in the bill, to secure the payment. He ad- 
 mits, that when he took the mortgage, he knew that defendant, Sophia, 
 had the same under a sale from the Commissioner, but she assured him 
 that she had a good title, and that it was only necessary to pay the fees, 
 which she requested him to do, and referred him to Mr. Hunt the Com- 
 missioner. On calling on Mr. Hunt he told him that defendant, Sophia, 
 had bought the property, and settled with him, and he was ready to deliver 
 the titles when the fees were paid. Defendant, Barelli, paid the fees, and 
 took the title deeds and delivered them to defendant, Sophia, or they 
 were delivered to her by Mr. Kane, the clerk of the Commissioner Hunt. 
 That through the agency of Messrs. Hunt and Shand, he obtained a cer- 
 tificate that there was no record of any mortgage of the premises in the 
 office of register of mesne conveyances, and from all the other offices in 
 the city, where, if there were any incumbrances, they would be found ; 
 that none such existed, and on the faith of these, and the representations 
 of the defendant, Sophia, that her title was good, and that she intended 
 to record the conveyance from the Commissioner to herself, he consented 
 to accept the mortgage of the premises as a security for the sum due 
 him ; and that so far from knowing that there was any mortgage from 
 defendant, Sophia, to the Commissioner, or other incumbrances, he acted 
 with all the caution which his knowledge enabled him to exercise, and in 
 full contidence that defendant had a perfect title to the premises mort- 
 gaged to him. He admits that he may have read the notice of the sale 
 published l>y the Commissioner, but avers that he did not charge his 
 memory with the terms, and denies that he had any agency in obtaining 
 the order for sale, or in the settlement between defendant, Sophia, and 
 the Commissioner; and was in fact ignorant of the decree, and a stranger 
 to the proceedings for dividing and settling the estate, and trusted to the 
 certificates, that there was no incumbrances on the estate, without knowing, 
 or hearing, or being given to understand, that there was any fraud or 
 irregularity in the transaction. He admits, that in the course of a legal 
 5^rh.-i proceeding in the Common *Pleas, he obtained an order for the 
 
 -■ sale of the premises mortgaged to him, and the plaintiffs' prayer 
 for an injunction having been refused, they were sold by the sheriti" on 
 the 5lh August, 1833, and that he purchased the houses and lots in 
 Meeting and Tradd streets, at $3,800, leaving a balance still due him on 
 the judgment against defendant, Sophia. He insists on his title thus ob- 
 tained, and denying all fraud and combination, prays to be dismissed, &c. 
 On the trial of tlie case, it appeared in evidence that defendant, Barelli, 
 was on terms of intimate friendship with defendant, Sophia, and her
 
 *571] CHARLESTON, FEBRUARY, 1837. 437 
 
 family ; paid his addresses to the plaintiff, Sophia C; and was so marked 
 in his attentions as to induce her friends to suppose that they were cng-aj;-ed 
 to be married. To her mother, defendant Sophia, he familiarly ap))lied 
 the epithet of " mother," to her sisters that of "sister," and to her aunts 
 that of " aunt ;" and was a constant visitor at the house, and took all 
 liberties he would have done if he had been a member of the family, but 
 afterwards married another lady. 
 
 In January, 1829, as stated in the bill, he advertised himself, in the 
 Courier, as the agent of defendant, Sophia, the administratrix of the 
 estate, giving notice to those indebted to the estate to make payment to 
 him, and to those to whom the estate was indebted to present their de- 
 mands to him, and made the inventory of the estate. The auctioneer, 
 Mr. Logan, who conducted the sale made by the Commissioner, had 
 instructions from defendant, Sophia, who did not even attend the sale, to 
 act under the direction of Barelli. The prices were limited by him at so 
 high a rate, that no one else bought any thing, and he bid off the whole 
 on account of defendant, Sophia. The sales were reported to him, and 
 he gave a check for the commissions. Dr. Schmidt, who attended the 
 sale with a view to purchase some of the property, applied to him to know 
 whether it was wanted for the family, for, in that event, he did not intend 
 to bid. He declined answering this question directly, but remarked that 
 nothing would be suffered to go out of the family at less than the prices 
 fixed. 
 
 The evidence is very abundant, that such was the influence which Ba- 
 relli had obtained over defendant, Sophia, and such the confidence she 
 reposed in him, that she confided the management of the estate almost 
 exclusively to him, and would do no act herself in relation to it without 
 his approbation. In the language of one of the witnesses, she acted upon 
 his ipae dixit. 
 
 *This confidence probably originated in her own incapacity for r^rwc) 
 business, and in the confidence that he would become interested in it L ' -' 
 by an intermarriage with her daughter. She had also become indel)ted 
 to him, in consequence of having engaged with him as a partner in sailing 
 a vessel to the West Indies ; and, on one of her sisters remonstrating 
 with her against suffering him to exercise such influence over her, and 
 taking such liberties in her house, she replied, that she was indebted to 
 him, and if she did not act as he wished, he would ruin her. 
 
 In the spring of 1829, Mrs, Wilkie heard a conversation between de- 
 fendants, on the subject of securing the debt by a mortgage, and the 
 witness stated to him that the property belonged to the estate, to which 
 he replied, that "it was no business of his." 
 
 Another witness (Mrs. Schirer) stated that she heard Barelli say that 
 a sale of the estate was necessary, to put it in the power of the defendant, 
 Sophia, and understood that the proceedings in equity were intended for 
 that purpose. 
 
 Mr. Kane, the clerk of the Commissioner, Mr. Hunt, examined on 
 interrogatories, stated that Mr. Hunt, since dead, executed a deed to 
 defendant, Sophia, for the houses and lots purchased by her at the sale, 
 and took her bond and mortgage of the premises for the credit part of 
 the sales, but that no money was paid at the time ; since the answer of 
 Barelli, and not very long before the examination of the witness, he has 
 70L. 1.— 51
 
 438 SOUTH CAROLINA EQUITY REPORTS. [*572 
 
 discovered the bond and mortgage in his own possession, endorsed with 
 the assignment of Mr. Hunt to defendant, Sophia, as the guardian of her 
 children, but he does not state whether they were or were not delivered 
 to her. 
 
 There is no doubt that, on general principles, the estate purchased by- 
 defendant, Sophia, at the Commissioner's sale, and mortgaged to secure 
 the bond given for the credit portion of the sales, would in her hands be 
 liable for the amount, notwithstanding it has never been recorded. She 
 has, however, subsequently mortgaged them to Barelli, to secure a debt 
 due to him ; and the questions which arise, are : 1st. Whether, in point 
 of fact, Barelli had notice of the existence of the prior mortgage at the 
 time he took the mortgage to himself ; and 2d. If he had, whether he 
 must not be postponed until the former mortgage is satisfied. 
 
 Barelli, in his answer, explicitly denies that he had notice of the prior 
 mortgage, and this must be taken for granted until the contrary is_ shown 
 *f^*7^1 '-*y competent and conclusive evidence ; but it *strikes me, that 
 •^ no one, who will take the trouble to examine the facts of 
 the case, can doubt that he has wilfully misrepresented the fact, 
 or more charitably, that he has forgotten it. The whole management of 
 the estate was confided to him by the administratrix, the defendant, 
 Sophia, and so completely had he acquired her confidence, that she would 
 do no act in relation to it without his concurrence. He made the inven- 
 tory of the estate, received the debts due to the estate, and paid those 
 against it. He alone attended and gave directions as to conducting the 
 sales by the Commissioner, and paid the fees of the auctioneer. He 
 received the deed from the Commissioner to defendant, Sophia, and 
 paid his fees. When speaking on the subject of procuring a mortgage 
 to secure the debt due to himself, he was told by the witness, Mrs. 
 Wilkie, that the property belonged to the estate. He stated to the wit- 
 ness, Mrs. Schirer, that a sale of the estate was necessary to put it in the 
 power of defendant, Sophia ; and I will not believe he was so worthless 
 and faithless an agent as to suffer himself to remain profoundly ignorant 
 that a mortgage of the property to secure the purchase-money was a part 
 of the terms of the sale. The mantle of charity is scarcely broad enough 
 to hide the conclusion, which necessarily arises out of the combination of 
 circumstances, that the transaction was too deeply laid to be easily 
 forgotten. 
 
 The defendant, Sophia, had become largely indebted to him, and it was 
 but reasonable that he should desire to have it secured ; a mortgage on 
 her undivided estate would not, perhaps, furnish a very ample security, 
 besides the inconvenience of obtaining partition with the other parties ; 
 besides a sale under a decree in equity, at which she was to become the 
 purchaser, would put the whole estate in her power, and she dare not 
 refuse any proposition that he would make ; and for what other purpose 
 could a sale of the estate have been desired ? Not to meet demands 
 against it, for they had been paid — not to provide for the wants of the 
 minor children, for the estate remaining in her hands, as administratrix, 
 would have been just as productive as if they were her own ; nor does it 
 appear that there was any peculiar necessity for selling the whole estate 
 on account of the plaintiff, Sophia C, unless indeed it was in her contem-
 
 *573] CHARLESTON, FEBRUARY, 1S37. 489 
 
 plation of her marriage with Barelli. And is it extraorrlinarv that Barelli 
 should have used the influence which he had acquired over this family, to 
 induce them to do what he might suppose would elfectually secure his 
 demand against the mother ? *The bad faith which he practised r*-K , 
 in the delicate affair of his attentions to the plaintiff, Sophia C, L''-^* 
 is pregnant proof that he was not wholly trustworthy. There can, I 
 think, be but little doubt that he was better informed of the character 
 and nature of the proceedings in equity than either the defendant, Sophia, 
 or any of the family ; if he was not, he was not that diligent and faithful 
 agent which defendant, Sophia, supposed. I conclude, therefore, that he 
 did know that a mortgage of the estate to secure the price was a part of 
 the terms of the sale, and that no money was paid by the defendant, So- 
 phia, to the Commissioner, but the fees of office. . 
 
 Assuming, therefore, that Barelli had notice that the mortgage was a 
 part of the terms of the sale, and that no part of the purchase-money was 
 paid by defendant, Sophia, to the Commissioner, the question then arises, 
 whether in law and equity the lien of his mortgage is to be postponed 
 until the claims of the plaintiffs are satisfied, and to what extent. And 
 here, again, I think there is but little room to doubt. 
 
 The bond and mortgage given by defendant, Sophia, for the purchase- 
 money to the Commissioner, were prescribed by the order, and consti- 
 tuted a part of the proceedings of the Court, and could not be cancelled 
 by the Commissioner, but upon full satisfaction, or the order of the Court. 
 But the Commissioner was, by the order of the Courtof May Term, 1829, 
 directed to deliver and pay to defendant, Sophia, as the guardian of her 
 minor children, their portions of the estate, whether the same should con- 
 sist of money or bonds, or both ; and under this order, she was entitled 
 to the possession of the bonds : and I apprehend that this would no 
 more discharge the bond than if a creditor should confide the safe keep- 
 ing of a bond to his debtor. Her appointipent as guardian of her minor 
 children, did not operate as a satisfaction of the bond and mortgage. It 
 is true, that the debt to her wards on this account, became identified with 
 her personal responsibility, but the mortgage was a higher security, whicli 
 she was incapable of cancelling, as there was no other party capable of 
 contracting about it. The defendant, Barelli, dealing with defendant, 
 Sophia, with the knowledge that she was required to give the bond 
 and mortgage, and had been appointed guardian of her children, was 
 bound to know the trust resulting as a legal conclusion from the circum- 
 stances, and according to a familiar rule, he is bound by them ; one deal- 
 ing with *a trustee in relation to the trust property with a r^^^S 
 knowledge of the trust, assumes all the responsibilities of the trust. ^ 
 
 There is another view which puts this matter beyond all controversy. 
 The Act of 1791, 1 Faust, 27, under which the proceedings for partition 
 were had, expressly provides, in all cases, when lands are directed to be 
 sold for the purpose of partition, they " shall stand pledged for the pay- 
 ment of the purchase- money ;" and in my own administration pf justice, 
 when my attention has been called to the subject, T have always refused 
 to require a mortgage from the purchaser, believing that the Act itself 
 gave a better security than any mortgage that could be devised. It is a 
 security which even the Court itself has no power to cancel. Defendant, 
 Barelli, according to his own admissions, knew that the property mort-
 
 440 SOUTH CAROLINA EQUITY REPORTS. [*575 
 
 gaged to him belonged to the estate of the intestate, and that it had been 
 pnrchased by defendant, Sophia, at the sale by the Commissioner for 
 ]iartition ; and his ignorance, if he was indeed ignorant, that the law 
 imposed a lien on it for the purchase-money, cannot help him. Of a part 
 of the purchase, one-third was required to be paid in cash ; and the 
 Commissioner, in his report, has acknowledged the receipt of it, and 
 states that he had paid it over to defendant, Sophia, on account of her 
 wards, to the extent of her interest in it, and to the plaintiff, Sophia, her 
 portion of the whole estate ; and the question arises, whether the lien 
 given by the Act extends also to the cash part of the sales. 
 
 The case itself furnishes conclusive evidence that no money was ever, 
 in fact, paid on account of the sales. Defendant, Sophia, was entitled, 
 in her own right, to one-third of the proceeds, and to five-sixths of the 
 remaining two-thirds in right of her wards ; and as to them, it would 
 have been a mockery to pay the amount to the Commissioner, and^to re- 
 ceive it back in the instant ; the interchange of receipts between them 
 was all that was rendered necessary by the occasion ; and it is not pre- 
 tended in the report that the Commissioner received any money on 
 account of plaintiff, Sophia. Divested of the mortgage, the case stands 
 thus : — The estate was sold pai'tly for cash, and partly on credit, but the 
 cash part was never paid. Can the purchaser resist the lien created by 
 the act, as to the cash part of the purchase ? I think not. It is true 
 that the interchange of receipts between the Commissioner and defendant, 
 Sophia, might, for most purposes, be regarded as a payment ; but equity 
 regards the substance, and not the form, of things, and will, to subserve 
 .^Kw/>-| *the purposes of justice, set up securities, which. In form, have 
 -• been extinguished. The case of Sophia C. Messervey, is some- 
 thing different from that of the minor plaintiffs, of whom she is the 
 guardian ad litem. The Commissioner states, in his report of January, 
 1830, that he, himself, had paid to this plaintiff, her distributive share of 
 the estate, real and personal. By what means this fact found its way 
 into the report, or upon what circumstances it was founded, does not 
 appear : but the case furnishes intrinsic evidence that the fact is not 
 true; she avers most unequivocally that she has never received anything. 
 The Commissioner, Hunt, never received a dollar on account of the sales 
 beyond his fees of office, and two-thirds of the purchase-money was not 
 then due ; and on the trial of this case, there has not been even a show 
 of evidence, or a plausible argument in support of it ; and the question 
 is, whether she is bound by it. 
 
 The judgment of a Court of competent jurisdiction, on a matter in 
 issue, unquestionably concludes the parties ; and that this Court would, 
 on a proper case, have had jurisdiction of the question, cannot admit of 
 a doubt; and it only remains to be inquired, whether it was put in issue 
 between the parties, and adjudged by the Court. 
 
 The bill filed by the plaintiff, Sophia, in 1829, on which this report is 
 founded, only prays for a sale of the estate, for partition ; and necessarily 
 could not have put in issue the question, whether she had, or had not 
 received her distributive share. The usual formula of referring the bill 
 and answer to the Commissioner, and his report recommending the sale, 
 followed ; and upon this was founded an order for the sale of the estate, 
 real and personal, with directions as to the terms, and that the proceeds
 
 *576] CHARLESTON, FEBRUARY, 1837. 441 
 
 should be "divided and distributed between tlie ])laintifr and defendant, 
 in the proportion of one-third to the defendant, Sopliia Messervey, and 
 two-thirds to be divided between tlie phiintilF, Sophia C. and her minor 
 brothers and sisters;" and that the portions of the minors should be paid 
 and delivered to their guardians, kc, &c. : and 1 apprehend that this 
 order did not put in issue the payment, for the fund liad not yet been 
 realized ; yet the Commissioner, in his report of tlie manner in which 
 this order had been executed, states that he had received and paid her 
 the whole of her distributive share of the estate. She never could have 
 anticipated that the question of payment to her, could have been involved 
 in a report *of his own actings and doings, in the execution of the r^r^-T 
 orders of the Court ; and ought not to be bound unless she had had L ' ' ' 
 an opportunity of controverting the fact, which does not follow from the 
 order of sale, nor does it appear from the report itself, which appears on 
 its face as a mere official ex jmrfe proceeding. But this is not all : the 
 report concludes by merely recommending "that defendant should be 
 discharged from her responsibility, as administratrix, and that she 
 account, yearly, for the proceeds of the estate of her minor chiklren ; and 
 in confirming this report, effect only is given to the matters recommended 
 by the Commissioner, and is not a sanction to the facts stated in it, having 
 no relation to the matters adjudged ; the fact that the Commissioner had 
 paid to the plaintiff her distributive share of the estate, has no possible 
 connection with the liability of defendant, Sophia, as administratrix, or 
 her accountability as her guardian, the only matters adjudged. I there- 
 fore conclude that the question is not res judicata, and that she is not 
 concluded. 
 
 It is therefore ordered and deci^eed, that the defendant, Sophia Mes- 
 servey, do account before the Commissioner for the estate of her wards, 
 the minor plaintiffs, distinguishing how much is due on account of the 
 sales of the real, and how much on account of the personal estate ; and 
 that he ascertain and report how much is due to the plaintiff, Sophia C. 
 Messervey, distinguishing in like manner between the real and personal 
 estate. And it is further ordered, that unless the defendant shall, within 
 sixty days after the final order of the Court, on the matters of account, 
 and notice of this decree, pay to the Master or Commissioner of the 
 Court, to abide the further order of the Court, what shall be ascertained 
 to be due to the minor plaintiifs, on account of their distributive share of 
 the real estate of their intestate father, with interest up to the time of 
 payment, and also pay, to the plaintiff, Sophia C, what shall be likewise 
 due to her on account of the said real estate, with interest as aforesaid, 
 then the mortgage executed by the said Sophia Messervey, the defendant, 
 to the said defendant, Barelli, for the three story brick house and lot in 
 Tradd Street, and the two story brick house situate on the east side of 
 Meeting Street, and No. 120, more particularly described in the j^lead- 
 ings and the order of the Court of Common Pleas directing the sale for 
 foreclosing the equity of redemption, and all the proceedings had thereon, 
 be, and the same are hereby declared to be set aside, and vacated, and 
 *utterly null and void; and that the Commissioner or Master of r:i:rYQ 
 Court, do thereupon proceed to sell the said houses and lots; if '- 
 both be necessary, after having given due notice thereof, for cash ; and 
 that he retain in his hands so much of the proceeds, subject to the order
 
 442 SOUTH CAROLINA EQUITY REPORTS. [*l>78 
 
 of the Court, as may be necessary to pay the sums ascertained to be due 
 to the minor plaintifts, on account of their interest aforesaid in the said 
 real estate of the intestate ; and that he likewise pay to plaintiff, Sophia 
 C. Messervey, what may be found due to her on that account. If the 
 proceeds are insufficient, then he will retain for the minors, in relative 
 proportion with the said Sophia C, and pay her the balance. If the 
 proceeds exceed the amount, he will pay the excess to defendant, Barelli, 
 deducting: therefrom the costs of this suit. In any event, the defendant, 
 Barelli, must pay all costs. 
 
 From this decree the defendant appeals, on the following- grounds : 
 First. — That the evidence of Barelli 's privity to the errors contained 
 in the proceedings in equity, is too slight to overturn his solemn denial 
 on oath ; and submit, in opposition to the inference of his privity, the 
 following considerations: 
 
 1. That his agency in the commercial business of Mrs. Messervey, and 
 in receiving and paying money for her, and in bidding for her at the sale, 
 is a distinct thing from the management of her legal affairs, in which she 
 was advised by her own counsel. 
 
 2. That the proceedings in Chancery were, on the face of them, in- 
 tended to vest the whole estate in her, on the security of her guardianship 
 bond ; and there was no proof that Barelli consulted her legal advisers, 
 or had any notice that those proceedings were irregular. 
 
 3. That the witnesses, Shirer and Wilkie, are mistaken in the evidence 
 w^hich they gave ; as will be proved by the acccounts between Barelli 
 and Messervey, from which it appears, that in January, 1829, and so 
 late as June, 1829, Sophia Messervey was indebted to Barelli in but a 
 small sum, and that the heavy liabilities which she incurred to him, took 
 place after January, 1830; and that the proposal of a mortgage came 
 from Sophia Messervey at a subsequent period, and after the dissolution 
 of his agency. 
 
 4. That if these considerations are not sufficient to take off, altogether, 
 the charge against the defendant, the Court should direct an issue upon 
 the point of notice. 
 
 *5'791 *Secondly. — That even supposing Barelli to be privy to the 
 -^ deception practised on the Court, the plaintiff, Sophia C, has no 
 title to relief, inasmuch as she consented to a report, declaring that she 
 had received her full share of the real estate, sold by the Commissioner 
 at her own request, to her mother ; and caused the said report to be con- 
 firmed ; and there is no evidence that the solicitors were employed or 
 received their instructions from Barelli, or that the report was prepared 
 at his instance, or with his knowledge. 
 
 Thirdly — That under the orders made in this cause, Mrs. Messervey 
 being the payee, as guardian, of her own bonds, could release the mort- 
 gage ; and that the deception practised on the Court was confined to the 
 fact of representing that she was guardian — in which there is no evidence 
 of Barelli's participation. 
 
 Fourthly. — That the parties in the suit, who were of full age, are 
 responsible, and the solicitors and the Commissioner are accountable for 
 the irregularities in the legal proceedings ; and that a decree against 
 Barelli goes to charge a bona fide creditor, upon doubtful evidence, of
 
 *579] CHARLESTON, FEBRUARY, 1837. 443 
 
 participation in a trausactioii for which the imiuediatc parties are not 
 called to account. 
 
 Fifthly. — That even if Burelli should be held bound, by constructive 
 or actual notice of the decree, to see whether there was not a niortj^age 
 to the Coimuissiouer, such notice would bind him only as to five-si,\ths of 
 $7,840, and the property in his hands should contribute only ratealjly witli 
 the rest of the real estate that ought to have been mortgaged. 
 
 And lastly. — That the proceedings in Messervey v. Messervey, if 
 void or voidable, are so only as to the shares of the infants. And that 
 the infants are not parties to the present bill. That the style in which 
 the plaintiff, Sophia, chooses to sue, as on behalf of herself and brothers, 
 is unmeaning, and can make no difference in the consideration of the 
 Court, as to parties, and that the bill should be dismissed. 
 
 Petigru and Lesesne, for appellant. 
 
 nice and Mevimimjer, contra. 
 
 Chancellor Harper delivered the opinion of the Court. 
 
 The first ground of appeal relates to matters of fact, with respect to 
 which we would very much incline to be governed by the *Chan- ^:crQ/^ 
 cellor's decision. Our own judgment on the evidence entirely L 
 agrees with the Chancellor's. The evidence is, that tlie defendant, Ba- 
 relli, transacted not only the commercial business of Mrs. Messervey, but 
 all her business affairs. The testimony of Mr. Shand shows distinctly 
 that he did habitually consult her legal advisers, and that of course he 
 transacted the business with the Commissioner ; and from her confidence 
 in him, and the ascendancy which he seems to have obtained over her, 
 the inference is hardly to be avoided, that he principally directed every- 
 thing that was done. The evidence of the witnesses, Shirer and Wilkie, 
 would only be important in considering whether the former decree and 
 all the proceedings should not be set aside, as having been obtained by 
 his fraud. And for this, I think there are strong grounds ; but the Chan- 
 cellor has not come to this conclusion, nor in fact does the question appear 
 to have been made before him, or by the bill. 
 
 With respect to the second ground of appeal, the confirmation of the 
 Commissioner's report, of his having paid to the plaintiff, Sophia C. 
 Messervey, her share of the estate, was not an adjudication. "When mat- 
 ters in issue are referred to the Master, and he reports upon them, and 
 the report is confirmed, then the report is made the decree of the Court. 
 But the fact of this payment was not referred to the Commissioner, or in 
 any manner in issue. It was not a judicial, but an administrative order, 
 which is always subject to the control of the Court — not intended to 
 establish the fact of his having made the payment, but to approve of it 
 if done, and to protect him in having made it. When a report of sales 
 is made, can any one suppose that this is a judgment establishing the fact 
 that the sales have been made ? It can at most amount to no more than 
 the entry of satisfaction upon a judgment or decree, which the Court 
 habitually vacates when it has been made by mistake, or there is any 
 equity to require it. The payment was not in fact made. When we 
 think of the relation in which the i)laintiff then stood to the defendant, 
 regarding him as her affianced husband, he must know very little of the
 
 444 SOUTH CAROLIXA EQUITY REPORTS. [*580 
 
 female disposition, who does not know that she trusted everything with 
 implicit confidence to his direction. He, on his part, assumed the char- 
 acter of a husband ; he would of course assume to act for her, nor have 
 I any doubt but that the report and order were made by his procurement 
 ^r,Q-\-\ ^^^ direction. Shall he be permitted to take advantage *of 
 ■J them ? He was her agent, and his act might have bound her as 
 to third persons, but he cannot claim his own act as being conclusive be- 
 tween himself and his principal. 
 
 Third. — Mrs. Messervey was not the guardian. The order of the 
 Court was, that she should be appointed guardian, upon giving bond with 
 sufficient security. This was never done, nor does it appear that letters 
 of guardianship were issued. She therefore had no authority to release 
 the mortgage, even if it had come into her possession. But the mort- 
 gage comes before the Court from the possession of the Commissioner, 
 Mr. Hunt, and though an assignment appears endorsed on it, yet if it 
 was not delivered, (which is to be inferred,) the assignment could operate 
 nothing. 
 
 Fourth. — The defendant, Mrs. Messervey is responsible, and will be 
 made so by the decree. If the plaintiffs had lost their security by the 
 misconduct of the officers of Court, they might be made responsible. — 
 But if the security be not lost — if the property is still legally bound to 
 satisfy their claims, certainly they are not bound to have recourse to the 
 officers in the first instance. 
 
 Fifth. — I suppose that the fifth ground refers to the Commissioner's 
 report, of his having paid over to Sophia C. Messervey her share of the 
 proceeds of the estate, by which she is thought to have been precluded 
 from claiming any thing now. But I have already disposed of that re- 
 port. Her share of the credit part of the sales is included in the bond, 
 and in fact, I suppose, though the records seem to bear a different mean- 
 ing, that the Commissioner only intended to report, that he had paid over 
 to her, her share of the cash proceeds of the sale. 
 
 The Chancellor, however, directs the property in the hands of the de- 
 fendant, to be made liable for all that shall be found due to the plaintiffs, 
 on account of their shares of the real estate, including as well the part 
 that was said to be received in cash, as the amount of the bond. If it 
 depended on the mortgage merely, it w^ould not be liable beyond the 
 amount of the bond. This renders it necessary to decide on the effect of 
 the Act of 1791, directing that when land is sold for partition, it shall 
 stand pledged for the purchase-money. The Act provides, that the party 
 may apply at his option to the Court of Equity or Common Pleas, for a 
 writ of partition ; directs the manner of proceedings, and enacts, that "if 
 5ic^q9-i it shall appear to the Court, that it would be more for the *in- 
 *'-' tei'est of the parties that the same should be sold, then they shall 
 direct a sale to be made on such credit, and on such terms as to them 
 shall seem right, and the property so sold, shall stand pledged for the 
 payment of the purchase-money." The Act then goes on to provide, 
 "that the judges of the respective Courts shall be, and they are hereby 
 authorized from time to time, to make such rules and orders as may be 
 necessary for the purpose of carrying the foregoing clause into effect." 
 It was urged, that this does not apply to sales made by the Commis- 
 sioner or master. But in every ca.se in which land is sold for partition
 
 *582] CHARLESTON, FEBRUARY, 1837. 445 
 
 under the authority of the Court of Equity, the sale is made l)y the 
 Commissioner or master. I suppose it was inteiuled tliat the act cannot 
 apply when the sale is made on the recommendation of the Commissioner 
 merely, no writ of partition having issued. But I do not perceive the 
 grounds of this. The practice of making sales on the recommendation 
 of the Commissioner, without the return of commissioners in partition, is 
 one of doubtful propriety. Yet the act refers it to the Court, to deter- 
 mine on the expediency of a sale, and the Court of Equity would of 
 course make the inquiry for this pur])Ose through its accustomed ollicer. 
 If there has been an irregularity in not having a previous return in par- 
 tition, I do not perceive that this can deprive the parties of the benefit 
 which the law expressly gives them. 
 
 As to the claim, that the property in the bands of the defendant, 
 Barelli, should contribute only rateably with the rest of the real estate 
 that ought to have been mortgaged — the defendant is entitled to more 
 than that. He has a right to the benefit of his mortgage, as against his 
 co-defendant, Mrs. Messervey. She purchased all the real estate, and 
 mortgaged it all. Part was not included in her mortgage to Barelli, but 
 remains as I understand in her own hands. She is directly the debtor, 
 and this property should be first sold, and applied to the payment of 
 plaintiffs' demands. But if, as suggested, she had sold part of the prop- 
 erty to a bona fide purchaser without notice, this could not deprive the 
 plaintiffs of the right to be satisfied of the whole of their claims out of 
 the property, in the hands of a purchaser with notice. For we cannot 
 avoid agreeing with the presiding Chancellor, that Barelli was cognizant 
 of the proceedings in equity ; knew how every thing was arranged, and 
 was the principal agent in making the arrangements. 
 
 The last ground is founded on a supposition, that the plaintiff, 
 *has no case, and the infants not being properly made parties, the r^coo 
 bill must be dismissed. The infants were improperly made plain- L 
 tiffs to the former bill for partition. Their interests were adversary to 
 those of their co-defendant assuming to be their next friend. But if it 
 were regular to do so, it would not benefit the defendants to vacate the 
 proceedings as to them on that ground. They are properly plaintiffs to 
 the present bill, for they have the cause of complaint. I do not say that 
 they might not have sustained a bill by another friend, making their sis- 
 ter a defendant, and liable if they should fail to obtain satisfaction of the 
 present defendants ; but that is not the case before us. According to 
 the view I have taken, she has a sufficient case, and right to relief. The 
 infants are not formally and technically parties plaintiffs ; but the Court, 
 if necessary, would permit that defect to be supplied. She has sued for 
 herself, and in their behalf. It may be true, as argued by counsel, that 
 none but a creditor or legatee, can sue on behalf of himself and others. 
 But the objection must be taken in a proper time and manner. 
 
 The defendant's demurrer to the bill, on which this question ought to 
 have been made, has been overruled. He has answered to the l)ill of 
 " Sophia C. Messervey, for herself, and as a guardian ad litem of her 
 brothers and sisters." He has taken no exception to this manner of su- 
 ing by his answer, and must, therefore, be held to waive the objection. 
 
 The only modification which it appears necessary to make of the cir- 
 cuit decree is, that upon the coming in of the report upon the account
 
 446 SOUTH CAROLINA EQUITY REPORTS. [*583 
 
 directed to be taken, the defendant, Sophia Messervey, pay to the plain- 
 tiffs, respectively, what shall be found due to them on account of her ad- 
 ministration of their father's estate, and the sales of the personal estate ; 
 and that the Commissioner, or Master, do, in the first instance, sell all 
 the real property purchased by the said Sophia Messervey, and mort- 
 gaged to the Commissioner in Equity, which was not mortgaged by her 
 to the defendant, Joseph A. Barelli, but remains in her hands, and apply 
 the proceeds towards the satisfaction of the plaintiffs' claims on account 
 of their share of the proceeds of their deceased father's real estate ; and 
 that he then proceed to sell the property in the hands of the defendant, 
 or so much thereof as be necessary for the satisfaction of the plaintiffs' 
 said claims, in pursuance of the directions of the decree ; and it is or- 
 dered and decreed accordingly. 
 
 Chancellors Johnson and Johnston, concurred. 
 
 ^PiQAi *Trustees op the Episcopal Church of Macon, v. Leroy M. 
 -I Wiley and J. B. Rowland. 
 
 A bill may be sustained here for the specific performance of a contract for tlie sale 
 of lands in Georgia ; and defendant was decreed to pny the purchase-money on 
 condition that plaintiff execute and tender titles to be approved by the Commis- 
 sioner. [*585] 
 
 On a sale of land at auction, the auctioneer is the agent of both parties, and his 
 memorandum in writing is sufficient to take the agreement out of the statute of 
 frauds. [*590] 
 
 And when the auctioneer made a pencil memorandum on a loose slip of paper at the 
 moment of sale, and shortly afterwards entered the sale in his sales book, the 
 latter is regarded as the true entry. [*5y0] 
 
 And where the auctioneer entered the sale as made to the agent the contract may be 
 enforced against the principal when he is discovered ; and the authority of the 
 bidder need not be in writing. [^590] 
 
 Heard before Chancellor Johnston, Charleston, January Term, 1836. 
 
 The contract in this case, relied on by the plaintiff's, was made in 
 Georgia, between citizens of that State, concerning a lot in the town of 
 Macon. The lot was put up for sale on account of the plaintiffs, by T. 
 P. Bond, an auctioneer ; and was knocked off to one Jesse Smith, as the 
 highest bidder, at the price of $2,450. But doubting the responsibility 
 of Smith, the auctioneer required another name, threatening to re-sell, 
 when J. B. Rowland, one of the defendants, came forward and assumed 
 the purchase, at the price of $2,400. The auctioneer then entered the 
 name of Rowland, as the purchaser, with a pencil, upon a loose slip of 
 paper ; and after returning to his office, entered the sale in his sales' 
 book. 
 
 Rowland having referred the auctioneer to the defendant, Wiley — Wi- 
 ley enters into the treaty and arrangements, whether individually, or as 
 one of the concern of Wiley, Baxter & Carter, is a question of testi- 
 mony. Upon a defect in the title being discovered, it is agreed between 
 the parties that the fulfilment of the contract should be suspended until 
 the Legislature of Georgia shall make good the title. In the meantime,
 
 *584] 
 
 CHARLESTON, FEBRUARY, 1837. 447 
 
 the lot depreciates in value, in consequence of which the tnisfees desire 
 to make Wiley take the lot, and for the same reason Wiley finally declines 
 taking it. Wiley removes to South Carolina, and the hill is filed against 
 him here, to compel a specific performance of the contract. 
 
 Johnston, Chancellor. The plaintiffs aim at Wiley, as the oidy sol- 
 vent defendant. 
 
 It would be sufficient for the plaintiffs to have made out a contract 
 with Rowland, either as the agent of Wiley, or as jointly interested with 
 him in the purchase ; either would give them a decree against Wiley — 
 If Rowland was Wiley's agent merely, then whatever would bind the 
 agent, would enure to the plaintiffs, as against the principal. If, how- 
 ever, Rowland was jointly interested with Wiley, they are both bound, 
 and although there may have *been other persons known to these r:<:rnr 
 two, who are also interested in the purchase, the plaintiffs are not ^ 
 to be turned round to them, nor obliged to resort to other than those 
 whose names were disclosed to them when the sale was made. Without 
 therefore, depending upon the evidence of a direct contract with Wiley, 
 if Rowland made a binding contract, that is enough for the plaintiffs, 
 provided Rowland was any way concerned with Wiley in the purchase, 
 either as agent or a partner. That there w^as the connection, of either 
 agency, or joint interest between them, the evidence leaves no doubt — 
 That Rowland made a valid contract, appears to me equally plain. For 
 admitting that the auctioneer's memorandum does not take the case out 
 of the statute of frauds, if of force in Georgia, his answer overrules his 
 plea. Both have answered. Wiley admits the sale, the terms the thing 
 sold, and to whom the auctioneer knocked down, and leaves it oidy to be 
 proved that the bidder was authorized, and by whom ; and the authority 
 of the bidder need not be in writing. 
 
 Two things only in the case have created any difficulty in my mind. 
 The first was the case of Bacon v. Roach, the doctrine of whieli I have 
 always, although joined by few in that opinion, approved. But that has 
 recently been overruled by the Appeal Court. The other related to the 
 power of this Court over the whole contract. The land sold is in Georgia ; 
 the plaintiffs are not entitled to a decree, but upon making titles ; and 
 this Court has not power to compel them. But I can give them a de- 
 cree dependent upon their making titles. 
 
 It was, indeed, contended for the defendant, that this Court does not 
 possess jurisdiction over any contract, into which, land lying beyond the 
 limits of the State, at all enters. But if the thing which is required to 
 be done, is that which the defendaiit can do in this State, and there is the 
 obligation of law upon him to do it, the cases leave no doubt, that this 
 Court, acting on the person, and not in rem, is not only competent, but 
 bound, to make him fulfil his obligations. 
 
 Arglasse v. Muschamp, 1 Vernon, 75, decided by Lord Nottingham, 
 in 1682, is an example. Muschamp, by a fraud in England, obtained a 
 rent charge on the Earle of Arglasse, in Ireland, and on a bill brought 
 in England where Muschamp was found, to be relieved against the grant, 
 he pleaded to the jurisdiction. The plea was overruled, on the ground 
 that the Court acts in personam, and *a release of the grant r:i-cQ/. 
 decreed. Here the fraud was perpetrated in England ; but that ^
 
 448 SOUTH CAROLINA EQUITY REPORTS. [*586 
 
 makes no difference, as the subsequent cases show. For although the 
 fraud gave the jurisdiction, it was never supposed but once, and tliat ia 
 the next case I shall mention, that there was a local venue as to fraud. 
 
 In Kildare v. Eustace, 1 Yernon, 405, tried in 1686, the bill was to 
 be relieved, touching trusts created in Ireland, of lauds in that kingdom. 
 Lord Chancellor Jeffries doul)ted his jurisdiction, because the trusts were 
 not created in England, and thought that it was the circumstance of the 
 fraud being committed in England, which gave jurisdiction in Arglasse v. 
 Muscharap. But he was so clearly wrong, that when subsequently, the 
 same point was argued before himself. Lord Chief Justice Beddingfield, 
 and Lord Chief Baron Atkins, not only were the Judges of opinion that 
 the jurisdiction was complete, but the defendant's counsel gave up the 
 point. 
 
 Roberdeau v. Rous, 1 Atk. 543, brought before Lord Hardwicke, in 
 1738, was the bill of an infant, in England, against the defendant, also in 
 England, to compel the delivery of possession of lands in St. Christophei's, 
 and for an account of the rents and profits ; to which a demurrer was put 
 in. The Court held that a plea was the proper form of defence, and 
 therefore overruled the demurrer, but entered into a series of observations, 
 showing its clear conviction, that whenever the Court can effectually act 
 in pe7-sonam, it has jurisdiction. 
 
 Foster v. Yassall, 3 Atk. 587, which came also before Lord Hardwicke, 
 in 1747, turned upon the informality of the plea put in ; but his lordship, 
 while he overruled the plea, for want of averments, took occasion again 
 to repeat the doctrine, that the Court must act, so far as it can act, in 
 jjersonam. The case before him was, among other things, for an account 
 of estates in Jamaica, the executor being in England. 
 
 Penn v Baltimore, 1 Yes. 444, was decided by Lord Hardwicke, in 
 1750, after much consideration, aided by a powerful and sifting argument 
 of the case, the weight of which so impressed him, that he declared it was 
 worthy the consideration of a Roman Senate. It was a bill against Lord 
 Baltimore, residing in Eugland, to compel the specific execution of an 
 agreement settling the boundaries between Pennsylvania and Maryland. 
 The Court decreed the execution, disclaiming all power to act in rem, 
 but only in personam. 
 
 5j.ro>, -| *In Cranstown v. Johnston, 3 Yes. jr. 170, which came before 
 -^ the Master of the Rolls, in 1796, the defendant had, while pretend- 
 ing to treat with the plaintiff for payment of a demand he held on him, 
 clandestinely obtained a judgment in St. Christophers, against the plaintiff, 
 who was not resident there, under which, he, with much secrecy and ex- 
 pedition, sold and purchased a rent charge in reversion which the plaintiff 
 held on property in that colony. The Master of the Rolls declared that 
 he must forget the name of the Court in which he sat, before he could 
 hesitate to relieve in such a case ; asserted the jurisdiction, when it could 
 operate in personam, and decreed a re-conveyance, deducting the defend- 
 ant's debt and expenses. 
 
 Here is a steady current of authorities, to which twice as many might 
 be added, all to the same effect. I say to the same effect, for although 
 some of the Judges did mix up with their reasons in the colonial cases, a 
 notion that the jurisdiction of the Court was increased by the supremacy
 
 *587] CHARLESTON, FEBRUARY, 1837. -149 
 
 of Eng-land, yet it is plain, that that consideration was not at all neces- 
 sary in their decisions, nor formed the ground of them. 
 
 The case of Pike v. Hoare, Ambler, 428, tried iu 1763, and relied on 
 by defendant's solicitor, is not at all calculated to sliake the vveigiit of 
 these authorities. The bill was to have an issue of dcimaril vel non, 
 ordered and tried in England, of a will made there, but charging the tes- 
 tator's debts on lands in Pennsylvania. The heir who filed the bill and 
 contested the will, had withdrawn all opposition to probate in the Eccle- 
 siastical Court, and had, without opposing it, suffered a decree to per- 
 petuate testimony to pass ; in consequence of which, the executors and 
 devisees had paid out above five hundred pounds towards the debts. 
 Lord Henley, who heard the case, although he confesses he built his 
 opinion materially on the circumstance that the land lay abroad — yet, 
 unhesitatingly declared, that the plaintiff's conduct was such, that if the 
 land was in England, he would not have directed the issue — that he had 
 completely forfeited his equity. 
 
 I feel, therefore, warranted in decreeing for the plaintiffs upon their 
 making a conveyance; although I would not be prepared to go the length 
 of those decisions, which hold that a defendant within the jurisdiction may 
 be compelled to make conveyances or deliver possession of lands in foreign 
 parts. That seems a very *hard doctrine ; and if the plaintiffs rji^coq 
 were in this State, and the bill was against them to compel them ■- 
 to convey, I would hesitate much. I think I would not sustain such a 
 bill. But it stops very far short of that, to give them a decree upon con- 
 dition of doing that voluntarily, which I would not compel them to do ; 
 leaving them to take or refuse the decree at their option. 
 
 Both Rowland and Wiley are before the Court. One of them lives in 
 this State — both have answered. 
 
 But to return to a point upon which I remarked at the outset. I said 
 it was immaterial to the plaintiffs, whether Rowland contracted as agent, 
 or partner, of Wiley. And so it is. But it is material to Rowland ; for 
 if he acted as agent merely, the whole contract should be thrown, as be- 
 tween him and Wiley, on Wiley. Whereas, if they were jointly interested, 
 they are both and each liable to the plaintilfs, and the conveyance should 
 be made to them jointly, leaving them to settle the matter between them- 
 selves. But Rowland's answer admits that what was done, was done 
 towards a joint purchase, and he may be allowed to speak for himself, 
 when he thereby takes a purchase on his own shoulders So that the 
 Court will leave it to the defendants to determine whether the decree shall 
 be that Wiley take the titles and pay the money as i)rincipal of Rowland, 
 or t^'hether the conveyance shall be to them jointly, and that both shall 
 be liable for the money. Whatever the determination may be, it is not 
 intended that they should be thereby deprived of the right of appeal. 
 The decree iu either case will be, that the titles be deposited with the 
 Register and approved by the Master, before payment of the price, and 
 that within a given time. When their determination is made let an order 
 be proposed. (Decree filed 4 January, 1836.) 
 
 (January 18, 1836.) The decree dated the 4th inst., having left to the 
 defendants, the choice of taking a title jointly or the said Lcroy M. Wiley 
 alone, and no choice being made — it is ordered and decreed, that upon 
 the plaintiffs executing and delivering to the defendants, a deed for the
 
 450 SOUTH CAROLINA EQUITY REPORTS. [*588 
 
 lot No. 5, in square 41, in the town of Macon, to be approved by the 
 Commissioner of this Court, and tendered to the defendants, or to their 
 solicitor in this cause, within two months from this date, the defendants 
 do pay to the plaintiffs the sum of two thousand four hundred dollars, 
 with interest on sixteen hundred dollars, from the seventeenth day of 
 January, eighteen hundred and thirty-two : and on eight hundred dol- 
 ^_„„-, lars, from the seventeenth* day of July, in the year eighteen hun- 
 -1 dred and thirty-two, and the costs of this suit. 
 The defendant Wiley appeals from the decree made in the case, upon 
 the following grounds : — 
 
 1. Because his Honor decreed, that the plea of the statute of frauds 
 was overruled by the answer, and therefore could not be maintained. 
 
 2. Because his Honor decreed, that the Court possessed jurisdiction in 
 the case, although the contract was proved to have been made in another 
 State, between the citizens of another State, concerning lands lying in 
 another Stale. 
 
 3. Because, if the contract, in consequence of the removal of the 
 defendant into this State, is to be considered as having been made 
 between a citizen of this State, and citizens of another State, the suit 
 ought to have been instituted in the Courts of the United States. 
 
 4. Because his Honor decreed a specific performance against the 
 defendant, although the testimony and answers proved that he was 
 interested in the contract only as one of the mercantile firm of Wiley 
 Baxter & Carter 
 
 5. Because his Honor decreed, that although the remedy was not 
 mutual, and the Court had no power to enforce performance of the con- 
 tract on the part of the plaintiffs who were without the jurisdiction of the 
 Court, a specific performance should be decreed against the defendant. 
 
 6. Because time is material in enforcing a contract by a Court of 
 Chancery when the circumstance of the parties are changed, and the 
 property in this case having depreciated during the period of delay on 
 the part of the plaintiffs, a specific performance of the contract ought not 
 to be decreed against the defendant, 
 
 A. 31. Smith, for the motion. 
 
 Petigru, contra. 
 
 Chancellor Harper delivered the opinion of the Court, 
 The second and sixth grounds of the motion, which relate to the points 
 chiefly considered by the Chancellor below, have been abandoned. 
 
 With respect to the first ground, we do not think it necessary 
 *^f)ni *^^ determine, whether the answer overrules the plea ; because we 
 -^ are of opinion, that there was a sufficient memorandum in writing 
 to take the agreement out of the statute of frauds, the auctioneer being 
 regarded as the agent of both parties. It is agreed, with respect to 
 goods sold at auction, he must be so regarded ; but some of the earlier 
 cases, determined that this could not be extended to lands. — Stansfield v. 
 Johnson, 1 Esp. Ni. Pri. 101 ; Buckmaster v. Harrop, 7 Yes 341. 
 But Lord Eldon expressed a different opinion, in Coles v. Trecothick, 
 9 Ves. 234, which has been followed ever since — by Lord Erskine in the 
 same case, of Buckmaster v. Harrop, 13 Ves. 456, and by Sir Wm.
 
 *590] CHARLESTON, FEBRUARY, 1837. 451 
 
 Grant, in Kenneys v. Proctor, 3 Yes. & B. 57. He states that he 
 should himself have been of a different opinion, but was governed by the 
 decisions of the Court of Common Pleas, in Emraerson u. Heclis, 2 
 Taunt. 38, and White v. Proctor, 4 Taunt, 209, to the same effect with 
 the equity cases cited. The same thing has been decided in New York. 
 — M'Corabe v. Wright, 4 Johns. Ch. Rep. 659. I, myself, expressed a 
 different opinion, in a case decided by me as Chancellor ; but upon its 
 being carried up to the Court of Appeal, that Court overruled ray 
 opinion ; so that the question may be regarded as settled. 
 
 Then an objection was taken to the sufficiency of the memorandum, as 
 not setting forth sufficiently the description of the property, and the terms 
 of sale. I do not understand the objection to apply to the entry in the 
 auctioneer's book, but to the pencil memorandum made on the land at 
 the moment of sale, which it was thought constituted the true memo- 
 randum. But this is contrary to the universal understanding. The 
 entry in the auctioneer's book was made as early as practicable. If a 
 memorandum of sales be made by a shopkeeper, in pencil, or on a slate, 
 and afterwards entered in the day book, the latter is always regarded as 
 the original entry. 
 
 Then it was argued, that having contracted and dealt with Rowland, 
 the plaintiffs have no recourse against Wiley. But it is perfectly well 
 settled that if a party contracts with an agent, not knowing him to be 
 agent, and afterwards discovers the principal, he may afterwards enforce 
 the contract against the principal. See Paterson v. Gaudasequi, 15 
 East, 62, and Railton v. Hodges, 4 Taunt. 576, &c. There is a 
 difference if a party contracts with an agent, knowing of the principal. 
 There, if after he knows the *principal, he continues to deal ex- r^^p^c^i 
 clusively with the agent, and gives the credit to him, the principal ^ 
 will be discharged. Addison v. Gandasqui, 4 Taunt. 574. Here, how- 
 ever, the plaintiffs dealt with the principal from the time they discovered 
 him. The case of Kemeys v. Proctor, seems to have been in this respect 
 precisely like the present. The auctioneer entered the sale as made to 
 the agent, and the contract was enforced against the principal. It is 
 clear that the auctioneer's authority need not be in writing. — See Lord 
 Eldon in Coles v. Trecothick. 
 
 The third ground was not urged in argument. 
 
 The fourth ground involves matter depending on testimony, with re- 
 spect to which we have no reason to distrust the Chancellor's conclusion. 
 The fifth ground was not urged, and seems to be without fouu(hition. 
 Chancellors Johnson and Johnston, concurred. 
 
 Francis B. Fogg, and Mary, his Wife, v. John Izard Middleton 
 and Henry Middleton. 
 
 Defendant J. I. M., with a view to prevent family discord, nnd to relieve himself 
 from the suspicion of having exercised undue influence over his mother, who had 
 by deed and will given him the bulk of her estate, executed bonds in trust to his 
 brother for the payment of certain sums for the benefit of the eldest duughter of
 
 452 SOUTH CAROLINA EQUITY REPORTS. [*59l 
 
 each of his sisters ; left them with his brother, and having informed the parties 
 interested of this proceeding, went to Europe where he still remains, leaving, 
 however, a large estate herein the care of his brother; the bonds meanwhile 
 remaining unpaid, and the trustee having taken no measures in relation to them: 
 Held, that there was sufficient evidence of delivery ; that the bonds were irrevo- 
 cable, and sustained by a sufficient consideration, and the trustee was decreed to 
 account [*591] 
 
 Heard at Charleston, April Terra, 1835. 
 
 Chancellor De Saussure, who presided, pronounced the following 
 decree, which contains a full statement of the case : 
 
 It is proper to state the relative situation of the family, and the cir- 
 cumstances of the case, which may be summed up in a short compass. 
 Mrs. Mary Middleton was the widow of Mr. Arthur Middleton, the 
 illustrious signer of the Declaration of Independence, and its vindicator 
 with his sword. He died intestate, after the termination of the revolu- 
 tionary war, but prior to the statute of February 1791, abolishing the 
 rights of primogeniture, and his real estate descended to his eldest son, 
 ^p.q9-| Mr. Henry Middleton, one of *the defendants ; whilst his personal 
 ^-^ estate was distributable by law, among his widow and children, 
 consisting of his two sons, iMr. Henry Middleton, and ;Mr. J. I. Middle- 
 ton, and his daughters, who respectively intermarried with Mr. Joseph 
 Manigault, Mr. Henry Izard, Mr. Henry M. Rutledge, Mr. Daniel E. 
 Huger, and Mr. Blake 
 
 Mrs. Mary Middleton, in her lifetime, conveyed by deed to her second 
 son, Mr. J. I. Middleton, her large real estate ; and by a will, pur- 
 porting to be her last will and testament, disposing other personal estate, 
 bequeathed the greater part thereof between her two sons, and gave 
 considerable pecuniary legacies, (as is alleged, and which does not seem 
 to be contradicted,) to each of her daughters (except Mrs. Manigault, who 
 was dead), Afterwards, she executed another will, and died in 1814, 
 leaving the same in full force, by which she disposed of the bulk of her 
 personal estate to her two sons, subject to certain legacies, and par- 
 ticularly a legacy to each of her daughters, of £100 sterling, which was 
 greatly below the legacies under the former will. 
 
 The personal estate of Mrs. Middleton was appraised at upwards of 
 seventy-one thousand dollars. 
 
 Some discontents naturally arose in the minds of daughters so slightly 
 provided by a wealthy parent, who bestowed so large a fortune on her 
 sons ; for notwithstanding the legal right of the parent to dispose of her 
 estate according to her judgment, her preference, or even her caprices, 
 the moral sense of the community and the feelings of families, revolt at 
 any very great disproportion made among children, where no misconduct 
 exists, or is alleged to exist. These discontents reached the ears of Mr. 
 J. I. Middleton, with the exaggerated report, that the use or the abuse 
 of his personal influence over an aged mother, had produced the effect of 
 diminishing her bounty to her daughters, by her last will and testament, 
 to his benefit. His delicacy revolted at the supposed imputations, and 
 he resolved to vindicate himself from them by voluntarily executing 
 bonds, to each of his sisters, to the amount they would have been entitled 
 to under the former will of their mother ; and thus relieve his name and 
 character from the suspicion of having exercised an undue influence over
 
 *592] CHARLESTON, FESRUART, 1837. 453 
 
 bis mother, for lus own benefit, and to the prejudice of his sisters. He 
 according-ly executed bonds to them, or their husbands, for the sums to 
 which they would have been entitled under the older will of their mother 
 and transmitted them to their respective husbands. These, it seems, 
 were *retnrned by all of them, except Mr. Henry Izard, who, it r^^rqo 
 seems, consented to receive it, but in a modified form, as appears ^ 
 by the two letters of Mr. J. I. Middleton, of the 4th and 17th May, 
 1815, to Mr. Henry Izard, in which he speaks fully on this subject ; and 
 explains his views and intentions, his motive and his acts, in relation to 
 all his sisters. Mr. J. I. Middleton, in pursuance of these intentions, 
 executed bonds, in trust to his brother, Mr. Henry Middleton, with con- 
 ditions for the payment of certain sums for the eldest daughter of each of 
 his sisters, and placed them in the possession of his brother, Mr. Henry 
 Middleton. He then went to Europe, about 1817, and has remained 
 there ever since, leaving his estate, including the personal estate, the 
 slaves derived from his mother's will, in the hands of his brother, Henry, 
 as his attorney and agent : and to apply the income of the estate to the 
 payment of the debts of her estate, and the legacies under her will. The 
 debts have been paid, and the bond to Mr. Izard's family has been paid, 
 but no payment has been made on the bond for Miss Mary Rutledge 
 now the wife of Mr. Fogg, the plaintiff. After many years, applications 
 were made, by letters, to Mr. Henry Middleton, as the agent and 
 attorney of Mr. J. I. Middleton, for payment, which applications being 
 unattended to, the bill was filed in this Court which makes this case. 
 
 The defence set up against the claim is stated fully in the answers. In 
 substance, it is, that the bond, though signed and sealed was not delivered, 
 but kept some time by the obligor and then deposited for safe keeping 
 with his own agent and attorney. That it was voluntary, and without 
 consideration, and cannot be enforced in a Court of Equity. And that 
 it was conditional, as to the time of payment, which was to be made after 
 the debts and legacies were paid, without interest till a year after those 
 payments. 
 
 The first question, then, is, whether the bond in question, is obligatory 
 on J. I. Middleton, so that the same can be enforced in this Court ? 
 
 It is proven by Mr. Bee, to have been duly executed, and he was a 
 subscribing witness. It was a voluntary bond, in the ordinary sense, as 
 there was no pecuniary consideration. But it was given upon full 
 deliberation, not lightly, and upon a consideration of tlie highest import 
 to the feelings of the obligor. He saw, and he felt, that the extraordinary 
 preference given to him by his mother, by the conveyance of a great real 
 estate, and bequest of a large ^personal estate, to the disinherison r^-qi 
 of his sisters, highly estimable in themselves, and who had never ^ 
 given offence to their mother, (for that is not pretended,) had produced 
 a painful effect on their minds. They were disappointed of reasonable 
 expectations, and humiliated by parental neglect amounting to a marked 
 preference of another child, and he felt that something was due to their 
 wounded feelings; and to quiet his own mind, and to secni'e himself from 
 suspicions, if not imputations of an undue influence exercised over the 
 mind of his aged mother, he, himself, therefore, proposes to give them 
 bonds, equivalent to their expectation under a former will. He, himself, 
 in his letter to Mr. Izard, puts it on that ground. He valued family 
 YoL. I.— 52
 
 454 SOUTH CAROLINA EQUITY REPORTS. [*594 
 
 concord, and propitiates it by doing voluntarily an act which he felt to 
 be a duty to himself, and did not consider it a bounty. He disclaims the 
 idea, over and over again, that it is to be considered by his nieces, as 
 conferring a pecuniary obligation on them. This, then, is a good con- 
 sideration on which the bond can be supported. 
 
 It was, however, urged, that it was not delivered to Mr. Henry Middle- 
 ton, as trustee for the persons intended to be benefitted, but as his agent 
 for safe keeping. And that Mr. Henry Middleton did not accept the 
 trust ; and, therefore, the act was not perfected. Mr. J. I. Middleton 
 himself, under his own hand, states how he considered the transaction at 
 the time, and how his brother considered it. He says, in his letter, " In 
 order to effect this purpose, my brother has consented to become a 
 trustee, for bonds, to the amount of the supposed deficit which I have 
 drawn in favor of my eldest niece," &c. " I had it drawn in this manner, 
 (stating the manner,) in order to avoid the possibility of its lapsing by 
 any accident to Mary, for whom it is intended. Again, a circumstance 
 stated, induces me to put them all on the same footing, and render the 
 deed irrevocable, (as ray determination always has been,) through my 
 brother," In the letter of ITth May, 1815, he says, "A bond drawn in 
 the manner you mention, shall be substituted for that now in the jJ0.s.ses- 
 sion of my brother." Surely, these various expressions denote a finished 
 act irrevocable ; and that his brother was the trustee, and had consented 
 to act. Can it be permitted to the defendant, to weaken the force or 
 change the character of this transaction, and these clear and positive 
 declarations, by recollections at the end of twenty years, stated by the 
 defendant himself with proper caution, as uncertain ? Assuredly not. 
 ,,,.„.-, The * Court must and will look to the acts and declarations of the 
 -' party at the time of its origin, and not to faint and doubtful and 
 ancient recollections and so with regard to Mr. Henry Middleton, the 
 defendant.' In his answer, after twenty years, and after being engaged 
 in great public affairs abroad, which drew his attention from minor affairs 
 at home, it is stated, so as to leave it doubtful or questionable, whether 
 the bonds were placed in his hands as trustee or as agent of his brother, 
 and whether he accepted the trust. His brother, Mr. J. I. Middleton, 
 unqualifiedly says he had consented to serve as trustee. Could he be 
 mistaken, when speaking at the very time of the transaction ? Or, is it 
 not more likely, that a recollection, at such a distance of time, should be 
 incorrect ? The evidence, too^ of Mrs. Rutledge, a lady of the most 
 respectable character, drawn from her reluctantly and painfully, taken in 
 connection with Mr. J. I. Middleton's letter, is conclusive. She testifies, 
 " that in the month of Oct. 1819, she passed a few days with her brother, 
 Mr. Henry Middleton, at his residence near Washington. During her 
 stay, and the morning preceding the day of her departure, he made her a 
 communication respecting a bond executed by her brother, J. I. Middle- 
 ton. He stated, that as they, the witness and himself, might be separate 
 many years, he requested her to recollect, that among other bonds left 
 with him by his brother, J. I. Middleton, there was one executed to him 
 by his said brother, for the benefit of her (witness') daughter, Mary, now 
 Mrs. Fogg, for one thousand pounds sterling, and that if any thing 
 should happen, she must remember that his estate would be liable for it. 
 She understood that he was perfectly acquainted with the nature of the
 
 *595] CHARLESTON, FEBRUARY, 1837. 455 
 
 bond, and regarded his commnnication as intended to inform her that he 
 held the bond, in trust for lier daughter, Mary, although she does not 
 remember that the word trustee was used. The amount of the bond was 
 mentioned, but she does not remember the date. 
 
 The witness was under the impression that the other bonds alluded to, 
 were of a similar nature to the one he, Mr. H. Middleton, desired her to 
 bear in mind. She supposes this impression arose from her having heard 
 that her brother, Mr. J. I. Middleton, had given bonds in favor of the 
 children of her deceased sister, Mrs. Henry Izard. The counsel for the 
 defendant supposes that Mrs. Pvutledge must be mistaken in her evidence. 
 But, surely more reliance is to be placed on the plain, and positive, and 
 affirmative *evidence of a witness, entitled to the highest credit, r-.(:cqp 
 who gives particulars of time and place, and the occasion of the '- 
 coram uication, on a subject to which her attention was particularly 
 drawn, a few years after the execution of the bond, than on the negative 
 recollections of a defendant, even of the same high character, after a lapse 
 of twenty years. 
 
 In my judgment, the bond was duly executed, was irrevocable, was 
 placed in the hands of Mr. Henry Middleton, as trustee, and he was 
 bound to take care of the interests of the cestui que use. This is the 
 equity and justice of the case ; and is, I think, amply supported by the 
 authorities cited by the counsel in the argument. 
 
 The only question which remains, is, when it shall begin to bear 
 interest. The condition of the bond is, that the sura of one thousand 
 pounds sterling should be paid in three equal annual instalments, to com- 
 mence from the day when the debts and legacies charged on the estate of 
 the late Mrs. Mary Middleton, mother of the said J. I. Middleton, shall 
 have been paid and released, with annual interest on the said sura ; which 
 interest shall commence from the end of one year, after payment of debts 
 and legacies, as aforesaid. The plaintiffs allege, that the income of the 
 estate was sufficient to have paid the debts and legacies, some time in the 
 year 1820, and that the interest should commence one year after. The 
 defendants insist, that the income of Mrs. Mary Middleton's estate, broke 
 in upon as it was, by a defaulting agent, was not sufficient to have paid 
 the debts and legacies of her estate, before about the year 1830, or '31 ; 
 conseqently no interest is chargeable earlier. This is a point which can 
 only be settled by an account which must be gone into, unless the parties 
 shall agree and fix upon an intermediate tirae. It appears that the per- 
 sonal estate bequeathed by Mrs. Middleton to her son, Mr. J. I. Mid- 
 dleton, remains in the hands of Air. Henry Middleton. 
 
 It is therefore ordered and decreed, that the sura of one thousand 
 pounds sterling, the condition of the bond in question, be paid out of the 
 said estate, together with interest ; and that it be referred to the Com- 
 missioner, to examine tho accounts of the income of the said estate, from 
 the year 1815, and to ascertain the debts and legacies due by the said 
 estate; and to report when the income was sufficient to have paid the 
 said debts and legacies ; and to calculate interest on the said bond, from 
 one year after the period *when said debts and legacies could have r^cq^ 
 been paid, which shall be paid out of the said estate. ^ 
 
 On further consideration of this case, it appears to me proper to add, 
 that after the distinct and positive declaration, in writing, by J. I. Mid-
 
 456 SOUTH CAROLINA EQUITY REPORTS. [*597 
 
 dleton, that his brother had consented to accept tlie trust in question, and 
 after the avowal of the trust by Mr. Henry Middleton, testified by Mrs. 
 S. S. Rutledge, it was not in his power to disclaim the trust. He had 
 assumed the trust, and acted under it, by paying the money on one of the 
 bonds to the family of Mr. Izard ; and that without any other instruc- 
 tions from Mr. J. I. Middleton, but ou his general authority. Again, 
 Mr. J. I. Middleton says, in his answer, that he did not advise his bro- 
 ther to take the ground of defence assumed in the answer, to wit : That 
 the bond was voluntary and revocable, was never formally delivered, and 
 that Mr. Henry Middleton never assumed the trust. This appears to me 
 a plain disavowal .of the defence ; notwithstanding the ultimate adhesion 
 to the defence. I cannot, upon the fullest consideration, see any reason 
 to doubt the equity and the legality of decreeing for the plaintiffs. 
 
 Defendants appeal, and hope the decree may be reversed, for the fol- 
 lowing, among other reasons : — 
 
 1. That plaintiffs seek payment of a voluntary bond, never delivered 
 to them, but signed and sealed, and macie payable to Henry Middleton, 
 ■who refuses the trust ; so that plaintiS's cannot sue at law. But if they 
 cannot sue at law, they cannot be relieved in equity, for equity never 
 interferes in favor of a volunteer. 
 
 2. That the bond being voluntary, and the plaintiffs not parties to it, 
 J. I. Middleton had a right, if he saw fit, to recall the money. That he 
 has exercised this right, and Equity will not control the legal right of the 
 obligor, or obligee, or give the plaintiffs a better security. 
 
 3. That, in point of fact, there was no delivery of the bond : and no 
 acceptance of the trust by the supposed trustee. 
 
 4. That in favor of a volunteer, relief cannot be extended, in equity, 
 beyond the letter of the deed. Whereas, the decree not only carries the 
 relief beyond the letter of the deed, but, in opposition to equity, makes 
 the defendant liable to the plaintiffs for the default of a third person, and 
 decrees interest from the time when the debts and legacies might have 
 *Rqe-| "^sen paid, if moneys lost ^without the wilful default of the defend- 
 
 -■ ants, had been duly applied. 
 
 Petigru, for appellants. 
 Grimke, contra. 
 
 Chancellor Johnston delivered the opinion of the Court. 
 
 Under the decided cases, the delivery of the bond would have been 
 established upon even less evidence than was furnished on the trial. As 
 it is, the proof fully sustains the Chancellor's conclusion on the fact. 
 
 The law of the case seems to admit of little doubt. 
 
 Cases have been quoted to show that equity will not aid a mere volun- 
 teer, where no legal right has passed, or where the action of this Court 
 is necessary to constitute the relation of trustee' and cestui que tt^ust. 
 
 But the delivery and acceptance of the bond, ijyso facto, constituted 
 Mr. Henry Middleton trustee. The bond contained his commission, and 
 set forth his duties. 
 
 It also vested in him the debt of which it was the evidence ; and if 
 that debt should be detained, he had a legal remedy to recover it. 
 
 Wherever a trustee has accepted a trust, he is bound to a diligent dis-
 
 ^598] 
 
 CHARLESTON, FEBRUARY, 1837. 457 
 
 charge of his duties. If he holds choses in action, with a clear remedy 
 on them, it is unfaitiiful in him not to endeavor to enforce them. If he 
 holds a bond, even although that bond is a free gift, he has no right to 
 remit it. 
 
 It never was the law that a trustee was not as amenable to a volunteer 
 cestui que trust, as to one who is not a volunteer. If that were the law, 
 no executor would be accountable to collateral legatees. 
 
 So that without going further than Mr. H. Middleton, the plaintiffs 
 have a right to come here to compel him to perform his trusts. 
 
 But if he is liable, it results that he may be compelled, also, to surren- 
 der to his cestui que trusts all the legal remedies he possesses. And this 
 puts the plaintiffs in possession of the bond, to all intents, as if it had 
 been drawn to them as obligee, or assigned to them. 
 
 If it had been drawn to the plaintiffs by Mr. John Izard Middleton, or 
 assigned to them by Mr. Henry Middleton, will it be pretended that the 
 plaintiffs could not recover from the obligor, even if it was given on no 
 consideration ? If it had been given on a consideration, which failed, 
 that would be a good defence. But the original want of consideration 
 would be none. 
 
 *]}ut if a consideration were necessary to support the transac- r:):-nQ 
 tion and enable the plaintiff to sue here, one existed in this case, '- 
 not valuable, indeed, but meritorious. The Chancellor has stated it truly 
 and forcibly. 
 
 The object was to heal family discord, by curing suspicions. 
 
 In Wiseman t'. Roper, 1 Ch. Rep. 84, articles were enforced in favor 
 of a nephew against an uncle, whose principal object in entering into 
 them was to reconcile the nephew's father to him. 
 
 In Stapilton v. Stapilton, 1 Atk 1, Lord Hardwicke held a volunteer 
 entitled to the execution of an agreement intended to establish the peace 
 of a family. 
 
 If the Court, in this case, travels beyond the case of the trustee and 
 cestui que trusts, and takes cbgnizance of the liabilities of the obligor, it 
 is at the instance of the defendants, who insisted on his being made a 
 party. Being here, at his own instance, the Court will, to prevent cir- 
 cuity of action, decree against him what he would have been liable to 
 pay the defaulting trustee, or what the plaintitls could recover, if the bond 
 had been assigned to them. 
 
 ^The payment of the bond is, by its terras, made to depend upon the 
 extinguishment of the debts and legacies charged on Mrs. Middleton's 
 estate. The instrument should receive a reasonable construction ; neither 
 too strict nor too loose on either side. On the one hand, it could not be 
 the intent of the obligor, when he gave the bond, to give an unavailable 
 obligation, which this would be, if he might evade payment, by capri- 
 ciously delaying to dischgirge the precedent obligations. On the other 
 hand, he should not be bound to greater diligence, in paying the prior 
 obligations, than would be exacted of one who had accepted a. trust to 
 pay them out of the assets of the estate; and if, by reasonable diligence, 
 they could not be paid as early as the plaintiffs could have wished ; or if, 
 without fault in Mr. Middleton, the assets were wasted by an ageiit (which 
 would excuse a trustee), these circumstances should be taken into con- 
 sideration in fixing the time when the debts and legacies should have been
 
 458 SOUTH CAROLINA EQUITY RErORTS. [*599 
 
 extinguished. Of course, these matters will be attended to in the refer- 
 ence which the Chancellor has ordered. 
 The motion is dismissed. 
 
 Chancellors Johnson and Harper concurred. 
 
 Chancellor De Saussure absent, from indisposition. •« 
 
 *finoi *J^coB EsswETN and Nancy Esswein vs. John Seigling, Exe- 
 -^ cutor of Theodore Euswein. 
 
 A gift executed liy delivery is binding. Actunl manual delivery is not necessary ; 
 it is enough tbat tbe donee bave possession witb the assent of the donor ; and 
 therefore where the defendant was an executor in possession of an estate, the 
 management of which required extraordinary trouble, and the legatees wrote to 
 him to retain one thousand dollars of the fux ds in hand as a present, which he 
 accepted, and afterwards filed a bill for an accourt: Held, tbat tbe plaintitfs were 
 bound and defendant was allowed this sum in making up the accounts. [*601] 
 
 Heard before Chancellor Johnson, Charleston, May Term, 1836. 
 
 Theodore Esswein, of Charleston, by his will dated Hth March, 1830, 
 gave all his estate to his parents, Jacob Esswein and Anna Maria Ess- 
 wein, and his sister, Nancy Esswein, of Manheim, Germany ; and named 
 Dr. Benjamin Simons and John Siegling, of Charleston, executors. Anna 
 Maria died before the testator, and he died in Cuba, on the 28th June, 
 1880. 
 
 Seigling, one of the executors, who was in Cuba, removed the pro- 
 perty there to Charleston — which was not effected without some diffi- 
 culty — and proved the will here. 
 
 Jacob and Nancy Esswein, in December, 1880, wrote to Siegling, 
 among other things, as follows : " The compensation which the law allows 
 does not appear to us an adequate indemnity for a man of business, nor 
 will we limit ourselves to it, but beg you to make use of our gratitude to 
 any extent you may deem proper." And again, on the 6th March, 1882, 
 " In acknowledgment of the great pains you took in these affairs, we, 
 with a deep sense of gratitude, intreat you to accept, besides the legal 
 commission or provision as executor, $1,000, both as a present from our 
 part, and a token of memory of your late friend, which sum you will 
 please deduct from the proceeds in hand." And on the 13th June, 188^, 
 " The precaution you display in the management of our affairs, leaves us 
 more indebted to you, but we hope hereafter to find occasion to return to 
 you, or some member of your respectable family, part of our obligations. 
 Let us entreat you, esteemed friend, not to judge us wrongfully on that 
 account, nor suspect us of a desire to pay off a friendship which has 
 obliged us forever, and bids us to avail ourselves of every opportunity to 
 prove by deed the sincerity of our sentiments." 
 
 They afterwards found fault with the administration, and filed this bill. 
 
 The Commissioner made his report of the balance in defendant's hands. 
 The plaintiffs excepted to the allowance of the $1000. 
 
 Johnson, Chancellor. In assuming the administration of the estate.
 
 *dOO] CHARLESTON, FEBRUARY, 1837. 459 
 
 the defendant incurred the obh"gation imposed by hxw, to *pay the r:(</.Ai 
 phiintill's what should remain of the estate after paying; the del)ts ^ 
 of the testator, and the necessary expenses and charges of administra- 
 tion ; and as a compensation for his services, tlie Act of the Lcirir^hiture 
 authorizes liim to retain a commission of two and a-li;Uf per cent, on all 
 moneys received, and provides the like commission on all sums paid out; 
 and the Act of 1745 irnb. Laws, 203,) provides, that if the executor 
 shall have extraordinary trouble in the management of an estate, he may 
 bring an action in tiie Court of Common Pleas, in which a jury may allow 
 him a further compensation, not exceeding five per cent, on the amount 
 which may have passed through his hands. In stating the accounts, the 
 Commissioner credited the defendant with two and a-half per cent, for 
 receiving, and the same for ])aying out the funds. So that he became 
 indebted to the plaintiffs on the balance of the estate ; and the question 
 is, whether the defendant is entitled to credit for the additional sum of 
 $1000, which the plaintiffs tendered to him, and authorized him to deduct 
 from the funds in hand, and which he agreed to accept as further com- 
 pensation. If it be regarded as a mere voluntary offer to give, I think 
 very clearly that he is not. No executory contract is binding, uidess it 
 is founded on a good or valuable consideration, and the discharge or dis- 
 solution of a subsisting debt or obligation is as obviously the sul)jcct 
 matter of a contract, as an undertaking to pay money, or to do any other 
 act, and necessarily requires the same consideration to support it. Hooper 
 V. Goodwin, 1 Swan. 485 ; Brysou v. Brownrig, 9 Ves, 1 ; Byrn v. God- 
 frey, 4 Ves. 6; Reeves v. Brymer, G Yes. 516. -No declaration of any 
 intention to give, however solemn and formal, even although the terras 
 import a present gift, will be binding, unless it be accompanied by a 
 delivery or transfer of the thing intended to be given. But it follows 
 necessarily, that a gift executed by a delivery of the thing intended to be 
 given, is binding on the donor, however improvident it may have been on 
 his part, or however unworthy the donee. Cotteen v. Missing, 1 Mad. 
 Rep. 103. I do understand, however, that an actual manual delivery is 
 indispensible. It is enough, that the donee obtained the possession of 
 the thing given, under the authority and with the assent of the donor. 
 Thus, if the gift be of a horse in a stal)le, and the donor say to the donee, 
 "I give you that horse and authorize you to take him," and he take him 
 accordingly ; so of money in a drawer, or goods in a warehouse. 
 
 *Here the defendant was in possession of a fund which belonged r^icgQo 
 to the plaintiffs, and in their letter of the 6th March, 1832, tliey_ ^ 
 entreat him, "to accept, besides the legal commission, or provisions as 
 executor, $1000, both as a present on our part, and a token of memory of 
 your late friend, which sura you will please deduct from the proceeds on 
 hand ;" a most clear and decided declaration of an intention to give. The 
 answer of the defendant to this letter, is not before the Court; but iu 
 their letter of the 1st September, 1832, they say, they rejoice " at the 
 acceptance of the gratification we offered to you, as a feeble effort of our 
 gratitude," &c. ; and it is obvious that in his reply to the first letter, 
 defendant had consented to accept the tendered gratuity, and in conformity 
 with their request, had deducted it from the fund in hand, and ai)i>ro- 
 priated it to his own use. So that the gift was perfected to the whole 
 extent of which, from its nature it was capable ; and the question is whether
 
 460 SOUTH CAROLINA EQUITY REPORTS. ["^602 
 
 the plaintiffs are bound ? I think tliey are. The circumstances well 
 warranted the defendant in treatinjj: tliis sum as his own, and the necessary- 
 inference is, that he did so. He may have adventured it in hazardous 
 and losinjr s])eculations, or dissijiated it in folly. If he has made a jirofit 
 in it, and is bound to account for the principal, he must also account for 
 the profits ; and it would be unreasonable to call him to such an account 
 at this day. If it had been lost, or dissipated in folly, the plaintiffs are 
 chargeable with throwing this temptation in the way of the defendant. 
 
 There is another view of this matter. The Act of 1745, before referred 
 to, allows an executor additional compensation, not exceeding five per 
 cent., when he shall have had extraordinary trouble in the management 
 of the estate. The defendant had extraordinary trouble with this estate. 
 A part of it was in Cuba, and a part here, and necessarily involved the 
 trouble and expense of travelling to and fro ; he was under the necessity 
 of remitting the funds to Germany, by means of bills of exchange ; his dili- 
 gence and prudence in the managment of it is again and again admitted, and 
 commended in the plaintiffs' letters ; and alihough the tender of the $1000, 
 is put on a footing of a voluntary donation, yet it is obvious that this 
 extraordinary trouble, is the basis of the gift, and entered largely into the 
 considerations ; so that, in truth, the donation was not merely gratuitous : 
 aud I apprehend, that the Court would not enter very minutely into the 
 *fi0^1 ^"*^1"''T' \vhether the compensation *fell short, or exceeded, the com- 
 -' pensation allowed by law. As in Trimmier v. Trail, 2 Bailey, 4S0, 
 where a legatee agreed not to charge the executor interest on her legacy, 
 because he had not charged her commissions on her legacy, and had 
 boarded her gratuitously for a short time ; and it was held that the con- 
 sideration was good, and the promise binding, without an inquiry into 
 the exact state of the accounts. The exceptions is therefore overruled. 
 
 From this decree the plaintiffs appealed. 
 
 Petigru, for plaintiffs. Delivery is essential to a gift, and a consider- 
 ation to a promise. Neither delivery or consideration is made out. But 
 even if the gift had been executed, the defendant could not insist on it. 
 The rule is against allowing a person standing in a fiduciary relation, to 
 practice upon the confidence of his constituent, so as to make an advan- 
 tage of his bount}', till the relation is at an end. Thus a gratuity from 
 a client to his attorney, may be recalled. Walmslv v. Booth, 2 Atk. 25 ; 
 Newman t'. Payne, 2" Ves' jr. 199; Welles v. Middleton, 1 Cox, 112. 
 So the principal has been enforced against a guardian, Hylton v. Hylton, 
 2 Ves. 547 ; Pierse u. Waring, 1 P. Wms. 121, n. Asrainst an agent, 
 Cray v. Mansfield, 1 Yes. 379; Fox v. Macreth, 2 Cox,"l58 ; Gibson v. 
 Jeyes, 6 Yes. 266. Against trustees, Campbell v. Walker, 5 Yes. 678 ; 
 Ex parte Hughes, 6 Yes. 617. 
 
 All these were cases perfectly free from fraud. The gifts or contracts 
 had been executed ; but on the principle of protecting against an abuse 
 of confidence, the transactions were not allowed to stand. This case is 
 fully within tlie principle, and is a very weak one for the claim, which is 
 certainly not stronger than a receipt without satisfaction. A receipt in 
 full would not have bouud the plaintifl's. Corbett v. Lucas, 4 M'Cord, 323. 
 The claim of the $1000, is, therefore, certainly bad at law. A forliori
 
 *603] CHARLESTON, FEBRUARY, 1837. 4()1 
 
 it is bad in equity, whicli never assists a volunteer, hut sets aside aetual 
 gifts from a cestui que trust to liis trustee, as against policy and justice. 
 
 Eckhard, for defendant. In all cases of a gift the real question is, 
 whether the donor has ])arto(l with his dominion over it. M'Dowall ads. 
 Murdoch, 1 Nott & M'Cord, 237. Where the subject will not admit of 
 a corjioreal delivery, if the party goes as *far as he can towards ^*/./^, 
 transferring the possession, his bounty will prevail. Toller, 234. ^ 
 A gift may be by deed, in word, or in law. All goods and cliattcls ]ier- 
 sonal, may be given without deed. A free gift is good without consider- 
 ation, and it is not in the donor's power to retract it, though he made it 
 without any consideration. 2 Toralin's Law Dictionary, Title Gift. 
 Though a Court of Equity will not assist a volunteer, yet if the act be 
 completed, though voluntary, the Court will act upon it. 18 Vesey, 150. 
 To complete a gift, there must be an actual or constructive delivery of 
 possession. Pitts v. Mangum, 2 Bailey, 588. There may be cases 
 where the Court will establish an agreement made with a trustee for 
 extraordinay allowance. AyliCTe v. Murray, 2 Atkins, 59; Brocksopp 
 V. Barnes, 3 Maddock, 61. The appointment of an executor in 
 India, constitutes him agent for the management of the estate. Poole 
 V. Larkins, 4 Vesey, 72; Cockerell v. Barber, 2 Ilussel, 585. The 
 Act of 1745, recognizes the principal of additional compensation to 
 executors, beyond commissions. Logan v. Logan, 1 M'Cord's Chancery, 
 5. As to the rule of guardian and ward, that applies Avhere a gift is 
 required as a condition of accounting. 1 Maddock's Chancery, 123. 
 The parties being of full age, are lirima facie bound by their contracts. 
 The inquiry is, has any supposed influence which an attorney has over a 
 client, been used to his prejudice. Ervin v. Miles, 1 M'Cord's Chancery, 
 547. 
 
 Per- Curiam. The case depends on testimony, and we are satisfied 
 with the conclusion of the Chancellor. The decree is affirmed. Parties 
 to pay their own costs. 
 
 Chancellor Johnston, dubitante.
 
 CASES IN CHANCERY 
 
 ARGUED AND DETERMINED IN THE 
 
 COUET OF APPEALS OP SOUTH CAEOLIM. 
 
 Columbia— Ban, 1837. 
 
 CHANCELLORS PRESENT. 
 
 Hon. henry W. DE SAUSSURE, President. 
 Hon. DAVID JOHNSON, 
 Hon. WM. HARPER, 
 Hon. J. JOHNSTON. 
 
 Caroline Seibels v. Abner Whatley, Barnet Statham and Wife, 
 
 and Others. 
 
 Testator by his will, after a specific bequest gives the residue to his wife for life 
 and at her death " to the nieces of my wife, in such manner and at such time as 
 my said wife shall think proper." — Held, that the power of disposing was not 
 given to the wife ; that she had no right to divest the legacies so given, nor to 
 disturb the equality of the portions which the will vested in the nieces, but 
 merely to fix on the time and mariner of enjoyment ; and that a niece of the hus- 
 band not being within the description of those named in the will, could not take 
 by the appointment of the wife. [*6U8] 
 
 Where the term " increase of slaves," is used, it means increase thereafter to be pro- 
 duced. Under a bequest of a female slave and her increase, children of the slave 
 born before the execution of the will, do not pass [*G09] 
 
 Edgefield, June Term, 1836. 
 
 Peter Lamkin, late of Edgefield district, having a wife but no children, 
 made his last will and testament, dated 10th of June, 1826, of which the 
 following is a copy : 
 
 " I, Peter Lamldn of the State and District aforesaid, being of sound 
 mind and memory, but mindful of the uncertainty of life, do make and 
 ordain this my last will. and testament, revoking all others. 
 
 " 1st, I lend unto my wife, Helen Lamkin, all my estate, real and per- 
 sonal, (after paying all just demands that I may owe,) to be by her 
 enjoyed during her life, and at her decease, I do hereby give, devise, and 
 *6061 ^^^"^^^^^ ^^iito Edmund Lamkin Whatley, my nephew, *the tract 
 of land I Tiow live on, containing eight hundred acres, together 
 with all the crop, horses, cattle, hogs, farming utensils, &c., that may be 
 on the plantation at the decease of my said wife ; also the following ne- 
 groes : Ned, Sam, Pompey, Pollidore, George, Nance and her increase, 
 Mary and her increase, Betty the wife of Ned.
 
 *606] COLUMBIA, MAT, 1837. 463 
 
 " The balance of my nej^roes and other property not herein specified, 
 as willed to Edmund L. Whatley, at the death of my wife Helen, it is 
 my wish shall be given to the nieces of myicife, in mich manner and at 
 siu'h time a.s mi/ said ^oife, Helen, shall lliink proper. In testimony 
 whereof, I, the said Peter Lamkin, liave hereunto set my hand and seal 
 this tenth day of June, 182G. Peter Lamkin, [l. s.J Witnessed, &c. 
 
 It is my wish that Col. Abner Whatley, and my wife, have the sole 
 management of my affairs." 
 
 Shortly after the date of the will, Peter Lamkin died — Col. Whatley 
 qualified alone, as executor on the will, and Helen Lamkin, tiic widow, 
 continued in the possession of the property until her death, in April, 
 183L 
 
 Helen Lamkin, the widow, left a will in which, after reciting the power 
 given to her by her husband's will, of distributing the residue of his estate 
 after death, &c., she gives of that estate, to Elizabeth Helen Lamkin, 
 (her husband's niece, not hers,) a negro child named Emma : to all the 
 rest of her neices not otherwise therein provided for, five dollars each ; 
 and the residue of the estate to her nieces, Helen Anne Whatley and 
 Caroline Lamkin Statham, to be equally divided between them ; and 
 appointed Abner Whatley her executor. By a codicil, she altered the 
 distribution between Helen Anne Whatley and Caroline L. Statham, and 
 gave to Helen Anne, a negro girl, Harriet, and a tract of land called 
 the Pickle Place, and the residue to Caroline L. Statham. 
 
 After the death of Helen Lamkin, in April, 1831, Abner WHiatley 
 qualified on her will, and in conformity with its provisions, delivered over 
 the legacies as therein directed, except the negro girl, Emma, (a child of 
 Nance, born before the execution of Peter Lamkin's will, and bequeathed 
 by Helen Lamkin to Elizabeth,) which he still holds as guardian of his 
 son Edmund L. Whatley. 
 
 The negro woman 2^ance, bequeathed by Peter Lamkin to E. L. 
 Whatley, had at the execution of his will two children, Tom and the said girl 
 
 Emma, which Abner Whatley, the executor, regarded* as passing 
 
 [*607 
 
 by the terms of the will, " Nance and her increase,'''' to his son 
 Edmund, and therefore as his guardian has them now in his possession. 
 
 The plaintiff, Cornelia Seibels, a neice of Helen Lamkin, has filed this 
 bill against Abner Whatley, as executor of the two wills, and as guardian 
 of his son, Edmund L. Whatley, and against Barnet Statham, and Caro- 
 line (formerly Seibels) his wife, Dr. Thomas Batty and Helen Anne (for- 
 merly Whatley) his wife, and Eliza Seibels, as defendants, claiming an 
 equal share with the other neices of Helen Lamkin, to that portion of 
 Peter Lamkin's estate, which he by his will directs to be given to the 
 nieces of his wife, in such manner and at such time as she shall think 
 proper ; and that Tom and Emma form a part of this estate, thus subject 
 to an equal division among the nieces of Helen Lamkin, and do not pass 
 and vest in Edmund L. Whatley by the terms and description " increase" 
 of Nance, although they were born before the execution of the will of 
 Peter Lamkin. All the defendants, except Eliza Seibels, answered, and 
 insisted that the will of Peter Lamkin conferred the power upon his wife 
 to dispose of this property among her nieces in such portions as she might 
 think proper ; and Abner Whatley suggests in his answer, that if such was 
 not his intention, and the property be now subject to equal division
 
 464 SOUTH CAROLINA EQUITY REPORTS. [*607 
 
 anionfj; all the neices of Helen Lamkin, then, other nieces who are not 
 parties to this suit are entitled to eonie in and take shares. 
 
 Johnson", Chancellor. The first point made by counsel, is whether 
 Tom and Emma, children of Nance, born before Mr. Lamkin's will, pass 
 to E. L. Whatley under the bequest to him of " Kance and her increase." 
 
 The words used do not limit the increase given with Xance to future 
 increase. Increase, as a general term, will, I suppose, include past in- 
 crease as well as future ; and extend to all the children of the stock slave. 
 
 The next point relates to the extent of the power conferred on Mrs. 
 Lamkin by her husband's will. 
 
 The words used by the testator do not give the wife the power of giv- 
 ing or bequeathing to her nieces, but amount to a bequest to them by the 
 testator himself. If the power of disposing had been given to the wife, 
 and not exercised by the husband, then it might have been a debatable 
 *ro«?1 question, whether she had not such control *over the corpus as 
 -I to apportion it according to her sound discretion. In such case, 
 I think her distribution, however unequal, would stand, unless it frus- 
 trated some expressed object of her testator, and thus evinced fraud or 
 an evasive motive. (1 Con. Eng. Ch. Rep. 242; 2 lb. 303; 5 lb. 464; 
 6 lb. 405; Y lb. 562; Sug. Pow. 440, Ul, 481, 488; 7 East. 521; 
 1 Yin. 66; Harp. Eq. Rep. 117.) 
 
 The first words used by the testator are these: "The balance, &c., at 
 the death of my wife, it is my wish shall be given to the nieces of my wife." 
 If he had stopped here, I think no lawyer would doubt that this would 
 have amounted to a direction to his executors to deliver "the balance" to 
 his wife's nieces, and so would have constituted a valid bequest to the 
 nieces themselves. The executors would have taken upon that trust. 
 
 The words superadded ( " m such manner and at such time as the said 
 Helen shall think proper") have no other effect than to require the ex- 
 ecutors to deliver the property at such times and in such manner, as the 
 wife may think most advantageous to the legatees. This gave the wife 
 no right to divest the legacies given by the husband to the nieces, nor to 
 disturb that equality of portions in the corpus of the legacies which the 
 will of the husband vested in them, but merely to fix upon a time and 
 manner for their enjoying their shares. As to time, for instance, she 
 might order the legacies to go over, either in her lifetime or at her death, 
 and either before or at the neices marrying or coming of age, «fec. As to 
 manner, she might by deed or will have ordered the property to be 
 delivered either free from or subject to, trust or settlements, &c. (4 Con. 
 Eng. Ch. Rep. 97; 13 Yes. 114.) 
 
 Mrs. Lamkin transcended her power, not only in attempting to take 
 from some of her nieces their right to equal portions, but in endeavoring 
 to give part away from her own nieces to Elizabeth Helen Lamkin, a 
 niece of her husl)and. The husband gave exclusively to the former ; his 
 own nieces do not fall within the legatees described by him, and cannot 
 take without violating the words of his will. 
 
 It is decreed that so much of the bill as relates to Tom and Emma 
 ante nati " increase of Nance be dismissed." 
 
 That the appointment made by Mrs. Lamkin among her own nieces, 
 be set aside for inequality ; and that in favor of Elizabeth Helen Lamkin 
 
 (
 
 *b08] 
 
 COLUMBIA, MAY, 1837. 465 
 
 be set aside, because made to a person not described in tlie power con- 
 ferred on her. 
 
 That the Commissioner do make up the accounts, and ascertain and 
 report the names and ages (i. e. whetlier infants or not) of the per- 
 *sons entitled to take as nieces of Mrs. Lauikin. Also, what ri^(.n.c\ 
 would be the most proper time for delivering their portions, and L 
 subject to what trust and conditions. The costs to come out of Mrs. Lam- 
 kin's estate so far as it may extend. The balance, if any, to go accord- 
 ing to the effect of the decree, under the rule of Court. 
 
 The defendants, except Eliza Seibels, appealed, and will move the 
 Court of Appeals to reverse so much of the decree as sustains the bill, 
 and decides that Helen Lamkin had not power to dispose of the prop- 
 erty in such proportions as she might think proper, among her neices ; 
 and to dismiss the bill on the ground, that Peter Lamkin by his will con- 
 ferred upon his wife the power of disposing of the property as she should 
 think proper, with no other restriction than that the objects of her bounty 
 should be her nieces. 
 
 The plaintiff appeals, and contends that Tom and Emma did not pass 
 to E. L. Whatley. 
 
 Wardlaw, for the plaintiff. 
 
 Bauskett, for defendants. 
 
 Harper, Chancellor. We differ from the Chancellor who pronounced 
 the decree, in relation to the subject of the plaintiff's ground of appeal. 
 When the term " increase of slaves " is used, I think it is the common 
 understanding of men, that it refers to increase thereafter to be produced. 
 If a female slave were bequeathed who had children grown up, and them- 
 selves having children, would it be thought that all these were to pass 
 under a bequest of the first parent and her increase ? So of a domestic 
 female animal. When the right of a tenant for life to the increase of a 
 flock or herd is spoken of, the increase to be produced after his title ac- 
 crues, is of course meant. It has been decided by this Court, overruling 
 the case of Gayle v. Cunningham, (St. Rep. Eq. 124,) that the children 
 of female slaves born after the making of the will and before the death 
 of the testator, do not pass under a bequest of the mother. The express 
 bequest of the slave and her increase, might perhaps be construed to have 
 the effect of indicating the testator's intention that these should pass. — 
 But I cannot in any way constx'ue them to relate to children born before 
 the making of the will. 
 
 With respect to the defendants' ground of appeal, we agree with the 
 Chancellor, and little needs to be added to his reasoning. *There r*(.i a 
 can be no doubt of the correctness of the remark, that if the will •- 
 had stopped at the words — " The balance, &c., at the death of my wife, it 
 is my wish shall be given to the nieces of my wife " — that though ex- 
 pressed as words of wishing or recommendation, they would have been 
 imperative and made an effectual bequest to all the nieces of the wife, 
 who would have taken equally ; and that the wife could have had no control 
 in the matter. What effect can be given to the superadded words "in 
 such manner and at such time as my said wife, Helen, sliall think proper ?" 
 It is not said in such proportions; and can such coustrucliou be given
 
 466 SOUTH CAROLINA EQUITY REPORTS. [*610 
 
 to the words ? It is plain that the words " at such time " can have no 
 effect in this respect. Can the words "in such manner ?" It seems ob- 
 vious enough that manner is something different from substance or quan- 
 tity. In the King v. the Marquis of Stafford, 7 East, 521, referred to 
 by" the Chancellor, the gift was to the wife for life, and then to the use of 
 her issue " in such parts, shares and proportions, manner and form," as 
 she should direct. There was no doubt about her power of apportion- 
 ing; but it was contended that under the devise to her issue, she could 
 only appoint an estate tail. But Lord Ellenborough determined on the 
 words " manner and form" — that they import the power of determining 
 the nature and quantity of the estate the issue should take, and therefore 
 that the fee was well appointed by the wife. In Trollope v. Linton, 1 
 Cond. Eng. Ch. Rep. 242, it was determined by the Vice Chancellor, 
 Sir John Leach, that the words "manner and form" have the effect of 
 authorizing the person having the power of appointment to give equitable 
 estates to the appointed ; and that the grant of a term of five hundred 
 years to trustees for their use, was a good exercise of the power. The 
 cases on the subject are collected by Mr. Sugden in his treatise on Pow- 
 ers, and he comes to the conclusion (p. 442) that " in all these cases, it 
 is quite clear the testator means the fee to pass : and the word manner, 
 or any word of the like effect, may well be construed in favor of the in- 
 tention, to mean, in such mode an to the quantity of the estate to he given, 
 as the donee shall think fit. " Here, then, full effect may be given to the 
 words used in the will, without holding them to relate to the proportions 
 of the property, which they do not naturally import. Mrs. Lamkin 
 might have given the share of either of her nieces to trustees for her sep- 
 arate use during life, and at her death to her issue, or made any other 
 ^p,,-] similar arrangement which prudence^had seemed to require. *It 
 -^ was well observed in argument, that if a similar power had been 
 given as to property bequeathed to a single individual, it would have 
 been impossible to say that these words could have no operation or effect. 
 There is no reason for giving them a more extensive operation when the 
 bequest is a joint one. The plaintiff's motion is granted; and the decree 
 affirmed with respect to the defendant's ground of appeal. 
 Chancellors De Saussure and Johnson, concurred. 
 
 John P. King v. Margaret Clarke. 
 
 An administrator cannot set aside the gifts or contracts of his intestate, on the 
 ground, that they were made in fraud of creditors. He has no other rights than 
 his intestate had. [*G13] 
 
 A judgment against an administrator in Georgia, is not such evidence of indebted- 
 ness as will enable one claiming as a creditor, to sustain a bill here to set aside 
 the gifts of the intestate as fraudulent. [*()14] 
 
 Administrators of the same intestate in different States, are so far independent of 
 each other, that a judgment against one furnishes no right of action against the 
 other. There is no privity between them. [*G14] 
 
 A creditor seeking to set aside a voluntary conveyance for fraud, must show that 
 his debt existed at the time of the conveyance by such evidence as would establish 
 it in an action at law ; and that he cannot be paid unless the conveyance is set 
 aside. [*617] 
 
 Before Chancellor Johnston, Edgefield, June Term, 1836.
 
 *611] COLUMBIA, MAY, 1837. 467 
 
 The bill, (filed Sept. 1833) states that S and M. Allen bronc:ht their 
 action of assumpsit in Richmond county, (Geo.) against Freeman W. 
 Lacey and David Clarke : that pending the suit (on 7th of January, 
 1830,) Clarke died intestate. Wm. Magar administered on his estate in 
 Georgia, and was made defendant to the suit ; and judgment was recov- 
 ered (12tli of Jan., 1832) against Lacey in his own right, and against 
 Magar as administrator of Clarke, for ten thousand dollars, and execu- 
 tion lodged on which nothing has been collected. That S. and M. Allen 
 assigned the judgment, 12th of April, 1832, to the plaintiff. That La- 
 cey resides without the State, and at the rendition of the judgment and 
 ever since, was totally insolvent. That the judgment against Magar was 
 taken, subject to the plea of j^^fne administravitjyrceter. The amount of 
 assets in the administrator's hands undisputed, does not exceed $850, for 
 which the plaintiff is willing to give credit on the judgment ; and beyond 
 this, he has, in money and property, to the value of perhaps eleven hun- 
 dred dollars, claimed by defendant — the whole amount disputed and un- 
 disputed, not exceeding two thousand dollars. That, pending the said 
 action against him, and in anticipation of the judgment, and to defeat it, 
 David Clarke, on 4th of November, 1829, executed a deed of gift to the 
 defendant, his mother, of several slaves and other property, but retained 
 possession himself until shortly before his death, which took place in 
 Florida, in 1830. That, when about to go there, he placed a large sum 
 of money in defendant's hands, on deposite, or as a gift. That 
 *shortly after his death, and before administration, the defendant r^jj/^i^ 
 took into her possession all his personal chattels which she could L 
 seize, and removed to this State, and has since, with the funds of Clarke, 
 as is alleged, purchased lands and negroes. The bill charges the deed of 
 gift to be fraudulent and void as to creditor^ ; and prays that it may be 
 set aside — the property sold and applied to plaintiff's judgment; that 
 defendant account for the money and effects which came into her hands ; 
 and for the property purchased with Clarke's funds, and for the hire of 
 the negroes — and for general relief. 
 
 An amendment to the bill (filed 18th of January, 1834,) states that at 
 the filing of the original bill, the Ordinary's office for Edgefield was va- 
 cant ; and since filled, the plaintiff has, in that district, taken out letters 
 of administration on the estate of David Clarke ; and prays a general 
 account from defendant. 
 
 Defendant, in her answer, denies the plaintiff's right to sue in his charac- 
 ter of creditor, and insists that, if responsible, she is oidy so to an ad- 
 ministrator. Requires proof of the facts to establish the plaintiff's 
 claim ; and insists that the Georgia judgment, being only evidence of 
 debt, is examinable ; and the alleged cause of action being for money 
 won at play by David Clarke, from the clerk and agent of the Aliens, it 
 is questionable whether by the laws of this State, such action could have 
 been sustained : and that the claim now made is by one who has pur- 
 chased the judgment at one-fifth of its nominal value. She denies all 
 fraud in the bill of sale : two of the negroes mentioned in it had been in 
 her possession for many years before, when she advanced money to her 
 son ; one is not, and has not been in her possession, and the remaining 
 negro has been in her possession since the execution of the bill of sale. 
 She received no money from her son on deposit. Lacey gave her $250
 
 468 SOUTH CAROLINA EQUITY REPORTS. [*612 
 
 for a horse given her by her son ; and his note for S2,000, which is worth- 
 less As to the land and negroes purchased by her, they were bought 
 from her own earnings hoarded up for many years, aided from time to 
 time with small sums presented to her by her son. To the amended bill 
 she answers that some articles of furniture were left with her by her son, 
 which are not accounted for. 
 
 On the trial, the plaintiff's letters of administration, and an exemplifi- 
 cation of the Georgia judgment against Lacey and David Clarke's ad- 
 ^p,„-| ministrator, was given in evidence ; but no witness was *called to 
 -< prove the assignment. Freeman W. Lacey examined by defend- 
 ant on commission, proved that the Georgia action was brought to re- 
 cover money won by David Clarke and others from the clerk of S. and 
 M. Allen. That Clarke and his partners won not more than five or six 
 thousand dollars from the clerk, who, to the witness' own knowledge, lost 
 other large suras to persons not connected with Clarke, That, in, 1831 
 'or '32, he paid to the plaintiff five or six thousand dollars, in notes and 
 bonds of the deceased Clarke, some of which have been since collected ; 
 and that the plaintiff informed him he had purchased the judgment for 
 two thousand dollars. 
 
 Other evidence was given which is not stated in the brief: nor is it 
 necessary to the points decided, that it should be detailed. The 
 Chancellor in his report, states that he thought the fraud was fully made 
 out, and regrets that the plaintiff" did not establish the indebtedues to the 
 Aliens, or the assignment to himself. 
 
 The Chancellor pronounced the following decree : — 
 
 Johnston, Chancellor. The plaintiff in his character of administrator 
 of David Clark, is not entitled to avoid the gifts or contracts of his intes- 
 tate, on the ground that they were made in fraud of creditors. An 
 administrator is the mere representative of his intestate. Wherever the 
 intestate would be bound, the administrator is bound. In this case, 
 unless David Clarke could have set aside the gifts or contracts com- 
 plained of, (which it will not be contended he could have done,) his 
 administrator, as administrator, cannot do so. 
 
 The argument is very frequently advanced, that an administrator 
 represents the creditors of the intestate. But he does this to no greater 
 extent than the intestate did. The intestate held his property in trust 
 for his creditors. If he made a disposition of it in fraud of their rights, 
 they could set it aside. But could he ? 
 
 It is asked, if an administrator cannot set aside the fraudulent gifts of 
 his intestate, for what reason is he made a party to all suits brought by 
 the creditors against the fraudulent donee ? For the very same reason 
 that the donor, if he were alive, would be made a party — in order that it 
 may appear that there is an insufficiency of property to answer the 
 creditors without resorting to that included in the gift; and that a judg- 
 ment may be rendered against such as is accessible, in exoneration of the 
 *ri4l '^^*^"^^' whose gift, being *good as between himself and donor, must 
 -' be protected as far as can be done without injuring the creditors. 
 Another reason is, that the funds be restored to the administrator for 
 due administration.
 
 *614] COLUMBIA, MAY, 1837. 469 
 
 It is necessary then for tlie plaintiff to show himself to be a creditor, 
 in order to avoid the gifts of which his bill coniphiins. lias he done this ? 
 
 If the judgment rendered in Georgia against Magar, the Georgia 
 administrator, was evidence of the indebtedness of the estate, still he has 
 not proved that that judgment was ever assigned to him. Tliis would 
 be fatal to his pretension that he is a creditor. 
 
 But I am inclined to the opinion, that the judgment is not evidence 
 that the estate is indebted to the Aliens. I mean, that if the Aliens had 
 brought suit against the South Carolina administrator, they could not 
 have offered this judgment, rendered against the Georgia administrator, 
 as evidence of their debt, but would have been obliged to substantiate 
 their debt by original proof. 
 
 Professor Story, in his commentary on the Conflict of Laws, Foreign 
 and Domestic, chap. 13, sec. 522, says on the authority of Lightfoot v. 
 Bickley, 2 Rawie, 431, that "where administrations are granted to 
 different persons in different States, they are so far deemed independent 
 of each other, that a judgment obtained against one will furnish no right 
 of action against the other, to affect assets received by the latter in virtue 
 of his own administration : for in contemplation of law there is no privity 
 between him and the other administrator." 
 
 The United States' Constitution, in declaring that full faith and credit 
 shall be given in each State to the judicial proceedings of the other 
 States, means only, I apprehend, that credit shall be given to them as 
 against parties bound by the record, or their privies, not as against 
 strangers. I take the South Carolina administrator to be a perfect 
 stranger to the Georgia administrator. He is not even his successor, as 
 administrator de bonis non. 
 
 But the plaintiff, as administrator, is entitled to an account of the 
 property of his intestate, received by the defendant without the gift of 
 the intestate. Let an account be taken for so much of that kind of 
 property as the plaintiff can prove the defendant to have received, and 
 which the plaintiff has not alleged to have been given. 
 
 If the defendant desires to set up her counter-right as distril)utee, to 
 have back from the plaintiff so mnch as there may not be *del)ts r-^f-^^b 
 to absorb, she must file a cross-bill. Let the defendant pay the •- 
 costs of this suit. 
 
 The plaintiff appealed and moves the Appeal Court to reverse so much 
 of the decree of the Chancellor as disallows plaintiff's right as a creditor 
 of his intestate, to an account for the property alleged by jdaintiff to have 
 been given by his intestate to the defendant, on the following grounds :— 
 
 1. The judgment in Georgia, exemplified and exhibited here, is evi- 
 dence of a debt due by the estate ; and is no further questionable here in 
 its present form and in this suit, than would be any other foreign 
 judgment between the original parties to the suit. 
 
 2. Because it was sufficiently admitted and proved that the plaintiff 
 was the owner of the judgment. 
 
 3. Because, admitting the judgment not to be conclusive upon the 
 defendant, and the assignment to the plaintiff not to have been regularly 
 proved, yet the judgment is pynma facie evidence of the debt, and the 
 onus lay with the defendant to impugn it — and that the plaintiff had 
 
 YoL. L— 53
 
 470 SOUTH CAROLINA EQUITY REPORTS. [*615 
 
 bought and paid for the judgment was sufficiently admitted and proved 
 to constitute him an equitable assignee, 
 
 4. Because, in ordering an account to be taken of the estate of David 
 Clarke, the intestate, the order should have been extended to ascertaia 
 the extent of the debts and to whom due. 
 
 5. Because an administrator has a right in Equity to set aside the 
 fraudulent gifts and contracts of his intestate, upon the allegation and 
 proof that the property is necessary for the payment of debts which have 
 a lien under the statute against fraudulent conveyances upon such 
 property. 
 
 Bauskett, for appellant. 
 Waddy Thompson, contra. 
 
 Harper, Chancellor. We concur with the Chancellor, that the tran- 
 script of the judgment recovered in Georgia would not have been ad- 
 missible in evidence in an action against the administrator here. This is 
 very fully sustained by the case of Lightfoot t'. Bickley, referred to — as 
 well as by expediency and analogy. As said by the Chief Justice of 
 Pennsylvania, in that case, " Did an administrator represent the person of 
 *fiiri the intestate without ^qualification or restriction, the plaintiff's 
 -J argument would be incontrovertible ; but it is clear that his com- 
 mission extends only to assets of which the Ordinary hud jurisdiction. 
 
 It was surmised that the decision may have turned on the circumstance 
 that the judgment was one of a jurisdiction altogether foreign. But by 
 common law, a foreign judgment is prima facie evidence, though its 
 merits may be inquired into. It was not because the judgment was for- 
 eign, but because it was against a person with whom the defendant in 
 Pennsylvania had no privity. The Chief Justice speaks of an unexam- 
 pled spirit of comity exercised in Pennsylvania, by which the administra- 
 tor of another State is allowed to meddle with the assets there, and which 
 he supposes likely to be attended with much perplexity and confusion. — 
 But no such comity has ever obtained in this State, and it is plain that it 
 might be attended with very mischievous consequences. A person hav- 
 ing a douijtful claim, even a citizen of this State, might resort to another 
 State where the deceased person happened to have left goods, and pro- 
 cure administration to be granted to an instrument of his own ; and 
 avoiding appearances which would show and detect fraudulent collusion, 
 such an administrator might betray the defence, so as to enable the claim- 
 ant to recover. Even if the judgment were open to investigation, the 
 bona fide administrator here, might find the greatest difficulty in im- 
 peaching it, and it would be a hardship that such burden should be im- 
 posed on him. But according to our decisions, under the Constitution of 
 the United States, requiring full faith and credit to be given to the judi- 
 cial proceedings of other States, the judgment, if admitted at all, must 
 be conclusive. 
 
 Though not made specifically a ground of appeal, it was urged in 
 argument that the debt on which the judgment was founded was suffi- 
 ciently established by the admission of the answer and the testimony of a 
 witness, and that the assignment of the judgment must, in equity, oper- 
 ate an assignment of the debt. But to this there are various objections.
 
 *616] COLUMBIA, MAY, 1837. 471 
 
 That case was not made by tlie bill ; nothing; was charged as to the orig- 
 inal indebtedness, nor was the plaintiff called upon to meet that case. 
 The part of the answer relied upon, was plainly intended to im])iign the 
 judgraeut,gind not to admit any thing resiiecting the original indebt- 
 edness. The examination of the witness was directed to the same 
 point — the consideration of the judgment. Something is incidentally 
 ^brought out, which might seem to bear on the origiual indebted- r:t:(-i.T 
 ness; but plaintiff's examination was not directed to this: and L 
 even if it had been, the witness states only his belief without the grounds 
 of it, and plainly, his testimony is too vague to authorize any conclusion. 
 
 The plaintiff comes to set aside a voluntary conveyence for fraud. To 
 sustain his bill, it was incumbent on him to show at the hearing, that a 
 debt existed at the time of the conveyance, and that the creditor will be 
 disappointed unless it be set aside. He must, coming into this Court, 
 establish it by such evidence as would be sufficient to establish it in an 
 action against an administralor here. It might not be necessary to show 
 the entire extent of the indebtedness ; but the plaintiff has failed to show 
 any indebtedness ; though he states himself, to have received about $2000. 
 Having failed to make out his case, the Court cannot, upon an hypothesis, 
 or surmise that perhaps he may have a sufficient case, direct a further 
 inquiry on reference. The defendant has a right to require the dismissal 
 of his bill, so far as respects this part of the case. 
 
 The decree is affirmed. 
 
 Chancellors De Saussure, Johnson, and Johnston, concurred. 
 
 Wm. Kinsler and Others v. Isom Clarke. 
 
 Injunction granted to restrain defendant, ponding an action to try title?, from com- 
 mitting waste by cutting and carrying off the timber, where the chief value of the 
 land consisted in the timber, and it appeared more than probable that defendant 
 would not be able to pay the damages which might be recovered [*618] 
 
 On an npplication for an inj inction, the plaintiff may read affidavits tiled before the 
 coming of the answer in support of the bill, or in contradiction to the answer : 
 but no affidavits filed subsequently to the coming in of the answer can be read. 
 [*tJ20] 
 
 Before Chancellor Johnson, Lexington, July, 1836. 
 
 The bill in this case was filed for an injunction to restrain the defend- 
 ant from committing waste in cutting down and carrying off the timber 
 from the land in question, pending an action of trespass to buy titles at 
 law, by the plaintiffs against the defendant — alleging that the chief value 
 of the premises, by reason of its vicinity to Columbia, consisted in the 
 timber ; alnd that the defendant is fast dissipating his property, and will 
 not be able to satisfy the damages which the plaintiffs may recover. 
 
 The defendant, in his answer, admits the alleged waste, but insists that 
 he has a perfect, legal and equitable title to the premises ; and sets it out. 
 
 The Chancellor, in his decree, discusses the question of right to r,):/.io 
 *the premises, and decides it in favor of the plaintiffs. But as the '- 
 Court of Appeals refused to express any opinion on that question, it is
 
 472 SOUTH CAROLINA EQUITY REPORTS. [*618 
 
 unnecessary to state the facts connected with it, and the Chancellor's 
 reasoning thereon. In relation to the application for an injunction, the 
 decree proceeds as follows : 
 
 An action at law is the common and legitimate remedy for • trespass, 
 wdien the party injured may be remunerated in damages to the extent of 
 the injury sustained. Retributive justice does not, however, always fur- 
 nish an adequate remedy : the trespass may be of such a nature, that the 
 extent of the injury cannot be ascertained by any rule : as in the common 
 case of working a mine. And the Courts of Chancery have interposed a 
 preventive justice in those cases in which, from their nature, damages 
 might prove an uncertain or inadequate remuneration, by restraining the 
 wrong doer from a continuation of the trespass. An injunction to stay 
 waste, is a process in ordinary use, and although the doctrine was origin- 
 ally broached with great caution, and proceeded on with great circum- 
 spection, injunctions to restrain trespass when irreparable mischief would 
 be effected "before atrial at law could be had, are now regarded with more 
 favor. Vide Eden on Injunctions, 138, et seq. iShubrick i'. Guerard, 2 
 Eq. Rep. 619, note; 1 Fonb. Eq. 32, 33, notes. And in reviewing the 
 cases on this subject, I confess, I feel some surprise that they have ad- 
 vanced in favor thus far at so tardy a pace. It is true that the title to a 
 freehold, is a subject which exclusively belongs to the jurisdiction of the 
 law Courts, but Chancery utterly disclaims the right to interfere when 
 the title is in dispute, whether it refer to the factum of the muniments 
 under which the parties claim, or the boundaries. Eden, 138. And 
 when the parties come before the Court, the plaintiff, the acknowledged 
 owner of the soil, and the defendant, a naked trespasser, it strikes me 
 as comporting more with substantial justice to both parties to restrain 
 the trespass, than to leave the plaintitt' to pursue his remedy at law. 
 In most trespasses, particularly those committed on lands, it is utterly 
 impossible to fix with precision the quantum of injury, and we know from 
 experience that the verdicts of juries in such cases are generally the re- 
 sults of compromise between the extremes, and when this is not the case, 
 the plaintiff is inadequately rewarded, or the defendant punished with 
 great severity. It would therefore be for the interest of both parties, 
 that the trespass should be prevented : every one has the right to enjoy 
 *fii qn ^^^^ *vvhich is his own ; and one who would wilfully disturb him 
 -' in it, has no right to complain if he is restrained. Injunctions to 
 restrain trespasses, have been confined to those cases only where the 
 injury was supposed to be irreparable, and whatever may be my own 
 views of its propriety, I am not disposed to part from the old, or make a 
 new precedent, and will proceed to consider whether this case falls within 
 the established rule. 
 
 The bill states, and the answer admits, that the locus in quo is pine 
 barren, and is principally valuable on account of the fire-wood and timber 
 growing on it, and its contiguity to the Columbia market. That the 
 defendant has been for some time past cutting, and claims the right, and 
 proposes to continue to cut the wood and carry it to market. And there 
 is no question that by the employment of an adequate force which the 
 sale of the wood itself might command, the defendant might, before the 
 action at law could be tried, strip it of the last stick of wood upon it, and 
 leave the plaintiffs a barren waste. For this injury, au action at law
 
 [*620 
 
 *619] COLUMBIA, MAY, 1837. 4 73 
 
 certainly lies, and the plaintiffs would be entitled to recover the value of tlic 
 wood cut and carried off. He cannot, in a Court of law, purge the con- 
 science of the defendant, and by that means ascertain the extent of liis 
 injury, and much less would he be able to show the greater benefit that 
 he might have derived by a better husbandry, and waiting for better 
 markets; and it is obvious that any damages which a jury might give, 
 would be the result of conjecture. But above all, the trespass tends to 
 the destruction of the wood and timber which gives the land its ]irincip:tl 
 value, and brings the case precisely within the principal of the rule. A 
 case occurred in the Court of Appeals a few years ago which is not re- 
 ported, and of which I retain a very imperfect recollection, which strikes 
 me as being on all fours with this. If my recollection does not mistake 
 me, that was an application for an injunction at the instance of the owner 
 of a saw mill, to restrain a trespasser from cutting timber on lands con- 
 tiguous to it, and which was principally valuable on account ^f the 
 timber. The application was refused by the Circuit Court, and on an 
 appeal an injunction was ordered to issue. The plaintiffs, in support of 
 this application, rely also on another ground which I am disposed to 
 think has merits : the insolvency of the defendant, and the probability 
 that he will be unable to pay the damages which may be recovered in the 
 action at law. 
 
 The ground on which the Court proceeds is, it will be recol- 
 lected,* to restrain those injuries which may be supposed to be 
 irreparable at law — and what benefit, I would ask, would a plaintiff de- 
 rive from a judgment at law against a notoriously vagrant pauper ? And 
 how, I ask, is the community to be protected against the wanton injuries 
 of this class of people ? Are we to look and see them dispose of our 
 property in mere wantonness, and be gravely told that the Court of law 
 affords relief by compelling them to answer in damages ? I think not ; 
 justice is not so blind, nor the arm of the law so feeble, as to permit such 
 an outrage when preventive justice can be interposed. 
 
 The fact of insolvency is denied in the defendant's answer, and he 
 afSrms his ability to pay any damages which plaintiffs may recover on 
 account of the supposed trespass : but from the affidavits of several per- 
 sons who are intimately acquainted with his circumstances, I am led to 
 conclude that his means are at best only slender, and that from his im- 
 provident habits, it is more than probable they will rather decline, if not 
 go to ruin, than improve. At any rate, they are, in my estimation, a very 
 inadequate security for the damages which the plaintiffs have already 
 sustained, according to the defendant's own account of their extent, and 
 although that is not the aliject state of pauperism supposed, the result 
 would be the same, if in the end the defendant should be unable to pay 
 the damages. The right of the plaintiff to read affidavits in contradic- 
 tion of the defendant's answer in relation to the allegation of his insolvency 
 is denied. The rule on this subject appears to me to be well settled. 
 The plaintiff is unquestionably at liberty to file and read affidavits on an 
 appfication for an injunction in support of the allegations in this bill 
 before the coming in of the answer ; and as constituting a part of the 
 case, they may be read on any subsequent motion to perpetuate or dis- 
 solve the injunction ; but it is an inflexible rule that no affidavits filed 
 subsequently to the cording in of the answer, can be read ; and the reason
 
 474 SOUTH CAROLINA EQUITY REPORTS. [*620 
 
 given for it by the Lord Chancellor, in Smythe v. Smythe, 1 Swanston, 
 253, is that it is calculated to surprise the defendant. If, he observes, the 
 plaintiff at once supports the alleg-ation of his bill by the statement of 
 particular facts or affidavits, the defendant has an opportunity of explain- 
 ing or denying them ; but if they are kept back until after the answer is 
 filed, it is not dealing fairly with the defendant. The only exception 
 allowed to the rule, is in cases of waste, and such as are analogous, for 
 ^p.^, 1 the purpose of preventing irreparable* mischief, and extends only 
 -I to the fact of waste and not to the question of title. lb. 254, note 6. 
 and the cases there cited. On looking into the proceeding, I observe, 
 that although the defendant has answered, neither the bill, answer, or 
 affidavits have been filed ; and I suppose that this formality has been 
 waived by the counsel, and that the defendant had notice of the affidavits 
 before the answer was put in — one of them is indeed endorsed on the bill, 
 and no objection has been raised on that account — I am therefore of 
 opinion that the affidavits are admissible. It is therefore ordered that 
 an injunction do issue to restrain the defendant from cutting wood or 
 timber, on the land described in the conveyance from James Cayce to 
 Fabriel Friday, referred to in the pleadings, until the trial and final 
 determination of the action at law brought by the plaintiffs against the 
 defendant also referred to in plaintiff's bill, from trespass thereon, or 
 until the further order of this Court. 
 
 De Saussure, for the appellant. 
 
 Gregg, contra. 
 
 On appeal, the following opinion was delivered : — 
 
 De Saussure, Chancellor. This was a bill filed to obtain an injunc- 
 tion to restrain the defendant at law from committing waste by cutting off 
 timber from the land in question, pending an action of trespass to try 
 title at law, brought by plaintiff, Kinsler, against defendant, Clarke. It 
 was alleged that the chief value of the land consisted in the timber which 
 the defendant was cutting down : and that he was insolvent, and not able 
 to answer in damages for the injury done. 
 
 These allegations were sustained by affidavits. The answer denied the 
 insolvency. 
 
 The claim of both parties to the title was set forth in the pleadings, 
 and the Chancellor on the Circuit, to put an end to litigation and the 
 multiplicity of suits, made a decree on the question of right. But as this 
 Court is unwilling to decide on the question of title, which is pending in 
 a suit at law, it will make no decree on the appeal on that ground, but 
 will leave the parties to the litigation of the title in the Court of Law, to 
 which the Court remits them. 
 
 The ordy question, then, for the judgment of the Court, is on the 
 *622l ^PP^^^ h-om the decree of the Chancellor granting an injunction 
 ^restraining the defendant at law from cutting down timber on the 
 land in dispute, until the question of right should be decided. 
 
 The appeal made was on the ground, that in a mere case of trespass, 
 no injunction ought to be granted. 
 
 Oil a careful examination of the decree of the Chancellor on the Cir- 
 cuit, I concur entirely with him, in directing an injunction to be issued in
 
 *622] COLUMBIA, MAY, 1837. 475 
 
 this case. He has pLaced the interposition of the Court, for the protec- 
 tion of the laud in question from irreparable injury, for which the remedy 
 would be doubtful and uncertain, on the true grounds : and I concur 
 entirely with him. Nor is this doctrine and practice new in England or 
 in this country. 
 
 In analogous cases, this branch of preventive justice is freely adminis- 
 tered in England, and in this State several important decisions have been 
 made in the same spirit. 
 
 The case of Brookes & Marsh from Edgefield (Col. MS. cases), was 
 decided on great argument, in which the Circuit Court granted an injunc- 
 tion pendente lite to restrain a party in possession from cutting off the 
 timber from a tract of land valuable almost wholly for its timber ; and he 
 was alleged on affidavits to be insolvent and incapable of answering in 
 damages. And this decree was solemnly affirmed. 
 
 It is ordered that the decree on this point be affirmed, and the injunc- 
 tion continued. 
 
 Appeal on this point dismissed. 
 
 Chancellors Johnson, Harper and Johnston, concurred. 
 
 Daniel S. Black v. John Hair and Peter Black, 
 
 A mortgagee of personalty does not fall ■within the principle which prevents a 
 trustee to sell from buying at his own sale ; but he holds such a trust character 
 as to throw the burden on him of showing the fairuess of his purchase. 
 
 The bill states that the plaintiff gave his father, James Black, a mort- 
 gage on upwards of twenty negroes, together with horses, stock, planta- 
 tion tools, &c., to secure the payment of $1000 annually for twelve years, 
 commencing on 1st January, 1829, conditioned that in default of pay- 
 ment, the said James Black, his executors, administrators, &c., might 
 advertise and sell the said property to the highest bidder, to satisfy the 
 said notes, returning the overplus. That James Black died, and defend- 
 ants administered on his estate ; and default being made in payment of 
 the notes *as aforesaid, they proceeded to sell, on two different r^r-^yo 
 days, several of the negroes and other property, and themselves •- 
 purchased some of the negroes and other articles of property, at inade- 
 quate prices, on which one of the defendants afterwards made profit by 
 selling again. The bill prays that the sale to defendants may be set 
 aside, on the ground that a trustee to sell cannot purchase at his own 
 sale ; and that the property may be re-sold at their risk. 
 
 The answer admits the sale and purchase, but insists that the sale was 
 fairly conducted ; and one of the defendants admits that he made a profit 
 of $25 by selling a slave he bought on the day of sale. Denies fraud, &c. 
 
 Chancellor De Saussure, before whom the cause was heard, decreed 
 
 on this part of the case as follows : — 
 
 As to the conduct of the administrators in conducting the sales of the 
 slaves, the evidence is conclusive that they were fairly made, and brought 
 fair prices. As to the minor articles, although some of the circumstances
 
 476 SOUTH CAROLINA EQUITY REPORTS. [*623 
 
 at first induced doubt, yet I agree with the Commissioner, that upon the 
 whole there is no sufficient ground to vacate the sales. 
 
 The plaintiff appealed, and insisted that the defendants were trustees 
 to sell, and sustaining that character they were not at liberty to purchase 
 at their own sale : that all the reasons applicable to other trustees existed 
 here, where the time, place and credit were fixed by them, and the auc- 
 tioneer was their agent. And on the evidence, it was argued that the 
 sale was not fairly conducted ; at least was so suspicious that defendants 
 should pay the costs. 
 
 Herndon and Caldwell, for appellants. 
 
 Pope, contra. 
 
 Johnston, Chancellor. A majority of the Court is of opinion that 
 the plaintiff's appeal cannot be sustained. 
 
 The opinion of the Court (in which, to avoid being misconceived, I 
 state that I do not concur) is, that a mortgagee of personalty does not 
 fall within the principle which prevents a trustee to sell from buying at 
 his own sale. It is my province to state the reasons which have con- 
 ducted my brethren to this conclusion. 
 
 ^ -, *A creditor holding a mortgage security is a trustee to sell, not 
 -• only for the benefit of the mortgagor, but for his own also. If he 
 were not at liberty to bid, he would be deprived of the means of pro- 
 tecting his own interests as creditor. The mortgagor is at liberty to bid 
 also, and has thus the means of entering into fair competition with the 
 mortgagee, and compelling him to give a fair and full price. 
 
 But the Court is of opinion, that although a mortgagee does not stand 
 in that relation to the mortgagor which would subject him to an order 
 setting aside, as of course, his purchase at his own sale ; yet that he holds 
 such a trust character, as to throw the burden on him of supporting his 
 purchase by proof of fairness. 
 
 In this case, the Commissioner and Chancellor have drawn an inference 
 from the evidence before them, that there was no actual fraud in the sale ; 
 and they appear to be well warranted in their conclusion. 
 
 Chancellors De Saussure, Johnson and Harper, concurred. 
 
 Nancy King, and Others, v. Mary Johnson, The Executor of Wm. 
 
 King, and Others. 
 
 One having a lawful •wife and children, separated from them, and lived in a state of 
 adultery with a woman by whom he had several illegitimate children, and with the 
 proceeds of their labor purchased lands, and had the conveyances executed to the 
 natural children : Held, that the father might permit his natural children 
 to receive the profits of their labor and might invest those profits for them ; and 
 that such investment was no violation of the Act of ]7y-'), prohibiting gifts and 
 conveyances, exceeding one-fourth of his estate, by a man having a wife or 
 children, to a woman with whom he lives in adultery, or his illegitimate children. 
 [*G26] 
 
 Edgefield, June Term, 1836. Bill for relief, partition, &c.
 
 *624] COLUMBIA, MAT, 1837. 477 
 
 The plaintiff, Nancy Kinp;, was the Icg-itimatc wife of tlie (IcfciKhint's 
 testator, by whom he had two sons, who are also plaintiffs. Ai)oiit thirty 
 years ago, the testator separated from his wife, and soon after attached 
 himself to the defendant, Mary Johnson, with whom he lived in a state 
 of adultery nntil his death in 1835 ; and had by her a numerous family 
 of illegitimate children, who are parties, defendants. The defendant, 
 Mary, and the children, assumed the name of the testator, and they all 
 lived together as a family, of which he was regarded by themselves and 
 the neighborhood as the head. In 1820, the testator purchased two or 
 more tracts of land, containing together about four hundrcil and twenty 
 acres, and procured the conveyances to be executed to and in the names 
 of his illegitimate sons ; and the plaintiff's bill prays, that these convey- 
 ances may be set aside *and the lands partitioned amongst them, r:);/..)- 
 according to their interests, on the ground, that they are in viola- ^ 
 tion of the Act of 1795 (1 Brev. Dig. 68), which declares that all gifts 
 and conveyances, in whatever form or manner, by one having a lawful 
 wife or children, in favor of a woman with whom he lives in adultery or 
 illegitimate children, shall be yoid, so far as the same shall exceed one- 
 fourth part of his estate, real and personal. 
 
 The defence concedes that the testator made the contracts to purchase 
 the lands, and procured the conveyances to be executed to the defendants, 
 his illegitimate sons ; but avers that the purchase-money was paid by the 
 proceeds of the labor of the defendants, and not with the money of the 
 testator or any separate property of his own. 
 
 At the time the testator abandoned his wife and attached himself to 
 the defendant, Mary, he is represented to have been poor and without 
 credit, a drunkard and gambler, and so continued. In the language of 
 some of the witnesses, he " never would work," and most of them concur 
 in saying, that his success in accumulating property was the result of the 
 industry and economy of Mary and his illegitimate children. About the 
 time he made the contract for the purchase of the land, Mary, the defend- 
 ant, complained that it was hard that the fruits of the labor of her 
 children should go to others (referring obviously to the provisions of the 
 Act before recited.) The testator conceded that her children had made 
 the property he had, and said that he would procure the titles to be made 
 to them, to prevent his lawful wife and children from getting the land. 
 
 Johnston, Chancellor. A very attentive re-examination of all the tes- 
 timony offered at the trial, has but served to confirm me in the impres- 
 sion it then made on me, that the labor of Mary Johnson's children pro- 
 cured all the property, the conveyances for which were made in their 
 names : and that any agency which Wm. King had in accumulating the 
 property of the family, is more than compensated by the property which 
 he claimed as his own, and disposed of by his will. 
 
 I am satisfied by the reflection I have been able to bestow on the sub- 
 ject, that the natural children were so far strangers to Wm. King, that 
 they could claim the profits of their labors ; that he was at liberty to act 
 as their trustee for investing those profits in property *for them, r^^fcya' 
 and that the investment was no violation of the spirit of the Act L 
 of 1795, That Wm. King adopting them as his own, and holding out 
 their mother as his wife, \yould have been liable to creditors on the score
 
 478 SOUTH CAROLINA EQUITY REPORTS. [*626 
 
 of contract, is true ; but because he could make himself liable by contract 
 for these children, it by no means follows that he could take their earuings 
 from them ; he could not take them from them, but by virtue of a con- 
 tract with them. But they were minors and incapable of binding them- 
 selves. Much less was he bound to take their earnings, even if he was at 
 liberty to do so. Even if creditors could have claimed the earnings or 
 property of the natural children in discharge of necessaries furnished on 
 the contract of the father, (which, according to Proctor v. M'Call, 2 
 Bailey's R. 302, they could not do, unless they were deceived in the re- 
 lation between them,) the legitimate family who are volunteers under the 
 father, cannot claim that as a part of his estate, which was in conscience 
 no part of his property. 
 
 The bill must therefore be dismissed as to all the property the convey- 
 ances for which were executed to, and stand in, the names of the natural 
 children, and it is decreed accordingly. 
 
 The plaintiffs appeal from the decree in this case, dismissing the bill 
 as relates to the lands embraced in the conveyances to the defendants, the 
 illegitimate children of Wm. King, and move the Court to reverse the 
 decree, on the ground : 
 
 That those conveyances are in violation of the Act of 1795, 
 
 Griffin, for the appellants, contended, that except the right to inherit, 
 illegitimate children are put on a footing with legitimate. 2 Kent Com. 
 214. If the putative father adopt an illegimate child and take him under 
 his care and protection, he is liable for necessaries. Hesketh u. Cowing, 
 5 Esp. N. P, 131 ; 2 Kent's Com. 193, 214. And the relation is so well 
 recognized, that an information will lie for the abduction of a bastard 
 daughter under the care of her father. Rex v. Cornforth, 2 Str. 1162. 
 See also 1 T. R. 101 ; 1 Ray. 68. So a step-father is not bound to main- 
 tain the child, but if he assumes the protection and care of the child, he 
 is bound for necessaries. 3 Esp. N. P. Ca. 1 ; 3 Petersdorf, 130. The 
 father in this case living with the bastard children and their mother — 
 regarded as the head of the family, assumed all the liabilities of a lawful 
 ^nc)h-\ parent, and consequently acquired all the rights of one, of *which 
 -' was the right to the profits of their labor. Whatever was acquired 
 by the joint efforts of the father and children, became legally his — as 
 much so as if acquired by his own labor, or derived by descent, or will. 
 He had then no right to dispose of it contrary to the act; and the mode 
 resorted to is plainly an attempt to evade it, which the Court should 
 prevent, 
 
 D. L. Wardlaw, contra. Whatever may be the law as to the control 
 a putative father may exercise over his bastard children, and whether he 
 may or may not appropriate the proceeds of their labor to his own use, 
 he may decliue the right to make such appropriation. There is no rule 
 of law to compel him to do it. He might, and probably did, stipulate 
 with the mother that the children should have their own earnings. The 
 evidence favors this conclusion, and there is nothing contrary to law in 
 such an arrangement. 
 
 Chancellor Johnson delivered the opinion of the Court. 
 
 The decree of the Circuit Court, dismissing the plaintiffs' bill, is
 
 *627] COLUMBIA, MAY, 1837. 479 
 
 founded on the conclusion tliat the facts on which the defence rests are 
 true, and upon a careful review of the evidence taken on the trial that 
 seems to be the necessary conclusion. 
 
 On the argument here, error in the conclusion as to the matters of fact 
 has not been much pressed ; but conceding that to l)e correct, it has 
 been insisted that as the testator took these children under his immediate 
 care and protection, and provided for and treated them in all respects as 
 a father would his legitimate children, the obligations and duties of legiti- 
 mate children devolved on them ; consequently in law he was entitled to 
 the ])roceeds of their labor, and the application of them to the purchase 
 of lands for their use was a violation of the act referred to. 
 
 The obligations between parents and children are reciprocal. On the 
 pareut devolves the duty of maintaining, educating and providing for the 
 child ; in return for which the child owes obedience and assistance during 
 minority, and reverence and respect always ; and it follows necessarily, 
 that if in law either are absolved from these obligations, so also is the 
 other. Now, it is very clear that the putative father is not entitled in 
 law to the custody of his natural child, in op])osition to the claims of tlie 
 mother ; nor is he bound to provide for it further than is required by 
 express enactments* of the legislature. 2 Kent Cora. 178, 1st Ed. r*/.i>Q 
 The child cannot inherit from the father, and the extent to which L 
 the father can provide for his illegitimate child, is limited by the Act before 
 referred to. The father is not, therefore, entitled in law to the services 
 of his natural child. It is said, however, that when a father assumes 
 and discharges the duties of a parent, corresponding duties arise on the 
 part of the natural child ; and this is true so long as these relations exist. 
 But these relations are merely conventional, and being voluntary, may be 
 dissolved at pleasure. Not so as to the relations between the father 
 and his legitimate children. The obligations between them are imposed 
 by law, and neither can be absolved from them. The right of the puta- 
 tive father to the custody and services of his natural child, must therefore 
 arise out of contract, iu which the parties are at liberty to stipulate for 
 themselves. There is certainly nothing in these relations to prevent the 
 father from rewarding the child for its labor, or being its agent to invest 
 the proceeds ; on the contrary, in despite of the stern policy which alien- 
 ates the bastard from his putative father, nature has bound them together 
 by ties which cannot be severed ; and it is impossible to resist the feeling 
 that there is a moral duty imposed on the father, to aid the child when he 
 can do so without violating the law, or doing wrong to others. 
 
 I am well aware that there is much danger of abuse in the application 
 of this principle, and that without great circumspection it will be made a 
 "cover for evading the Act, but of its correctness there can l)eno question ; 
 and abuses may be guarded against by requiring clear and unequivocal 
 evidence of the fairness and reasonableness of the transaction. Of this, 
 the present case may serve as an example; for it is apparent that the 
 defendants' testator was a mere drone in the hive, and that the land con- 
 veyed to the defendants is a very inadequate compensation for the long 
 and faithful services of the defendants^ out of the proceeds of which it was 
 paid for. 
 
 The case of Hesketh v. Go wing, 5 Esp. N. P. Rep. 131, has been re- 
 ferred to, for the position that the putative father is liable for necessaries
 
 480 SOUTH CAROLINA EQUITY REPORTS. [*628 
 
 provided for a bastard child whom he had adopted as his own : and 
 hence it is concluded that out of this relation all the obligations of parent 
 and child arise. And this is put expressly on the ground of an implied 
 contract, arising out of the defendant holding himself out to the world as 
 *R9Qn being bound to provide *for the child, and not on the footing of 
 -I parent and child ; and the same rule would obtain in the case of 
 a foundling or other stranger. 
 
 There are doubtless many cases in which a quasi consanguinity between 
 the putative father and his bastard child, would be recognized ; as in 
 Haines v. Jeffel, 1 Lord Ray. 68, in which it is said that the father and 
 illegitimate daughter are within the degrees of consanguinity in which 
 marriages are prohibited. So in Rex i?. Cornforth, 2 Str. 1162, where 
 it is held that an information would lie for the abduction of a bastard 
 infant daughter being under the care of her putative father. But 'these 
 are exceptions to the general rule, arising from moral and necessary 
 causes, and by no means impugn the rule itself. 
 
 It is therefore ordered and decreed that the appeal be dismissed, and 
 that the decree of the Circuit be, and the same is, hereby affirmed. 
 
 Chancellors De Saussure, Harper and Johnston, concurred. 
 
 A. D. Jones and T. Briggs v. J. H. Blake and E. H. Blake, his 
 
 Wife, and Others. 
 
 What will be sufficient evidence of delivery to constitute a gift. [*682] 
 A former decree against one as administrator on a bill to compel delivery of slaves 
 claimed under a gift from intestate, will not conclude his rights as creditor, on a 
 bill by him against the former plaintiffs to set aside the conveyance for fraud. 
 [*635] 
 The decision in Smith vs. Henry, (1 Hill, Ifi,) that a debtor in giving a preference 
 by conveyance of his property, to one creditor over another, shall not secure an 
 advantage to himself at the expense of creditors as the price of such preference, 
 means a certain direct benefit or advantage to be derived from the use of the 
 property. And therefore, where a debtor transferred slaves to his daughter in 
 satisfaction of a precedent debt and retained possession of them under an agree- 
 ment to pay hire, the conveyance was held to be valid, and was sustained against 
 the other creditors. [*636] 
 
 Before Chancellor Johnston, Fairfield, July, 1835. 
 
 In, or before 1829, the defendants, J. H. Blake and wife, filed their 
 bill against the plaintiff, A. D. Jones, as administrator, and the heirs at 
 law of James Goodwyn. The object of that bill, and the case then made, 
 will be understood from the following extract from the decree of Chan- 
 cellor Harper, before whom it was heard in July, 1829 : — 
 
 " The principal object of the bill is to compel the delivery of certain 
 slaves mentioned in it, and to have an account of their hire. These slaves 
 are charged to have been legally transferred and delivered to the plaintiffs, 
 by the defendant's intestate. Major James Goodwyn, who was the father 
 of the plaintiff, Mrs. Blake, in the latter end of the year 1824. The 
 charge is, that the slaves were delivered in satisfaction of a precedent 
 debt, which was due by the intestate to his daughter, for a part of her
 
 *629J COLUMBIA, MAY, 1837. 481 
 
 deceased mother's estate, which consisted of a chose in action, not reduced 
 into possession *by the intestate, during the life of his wife. The r:^no(. 
 intestate had administered on the estate of his deceased wife, and L 
 was guardian of his said daugliter. — Or, if the transfer of the property 
 should not be established, the bill seeks to cover this demand, which is 
 claimed to be ranked as a bond debt. 
 
 " The principal points made in this case were, whether there was any 
 actual delivery of the slaves, so as to transfer the legal title ; whether, if 
 there was evidence of this, it was a gift, voluntary, or for a valuable con- 
 sideration, in satisfaction of a previous debt ; and in fact, whether any 
 such debt existed ; whether that which is supposed a chose in action, was 
 not property in possession on which the intestate's marital rights had 
 attached. 
 
 " It may be observed here, that much of the evidence and of the argn- 
 raent seemed to be directed to this point — Whether, if there be sufficient 
 evidence of the gift or transfer, as against the intestate himself, or those 
 claiming under him as volunteers, it may not still be fraudulent and void 
 as to creditors. The question seems to me hardly to be sufficiently made 
 by the pleadings ; though the defendant, Abraham D. Jones, in his 
 answer, prays that if the gift or transfer is established, it may be subject 
 to the claims of creditors. If a gift or conveyance be made by a person 
 indebted at the time, it will, from the mere fact of its being voluntary, be 
 held fraudulent as to existing creditors, who are unable to obtain satis- 
 faction of their demands. Now, there is no distinct allegation that the 
 debts now existing against the estate of Major Goodwyn, were due at the 
 time of the alleged transfer, or that the estate will not be sufficient to pay 
 all debts, independent of the property claimed by plaintiffs. From the 
 amount of the debts, I suppose I may take for granted, however, that a 
 considerable portion of them existed at the time of the transfer; and if I 
 should suppose the transfer voluntary, but good against the intestate and 
 his personal representative, such decree might be made as is suggested — 
 that it should be confirmed, subject to the claims of creditors. I there- 
 fore regard the point of the transfer's being voluntary or founded on con- 
 sideration, to be before me, so far as regards the parties to this suit ; it 
 is unnecessary to say that creditors, not parties to the suit, will not be 
 bound by the decree. But a voluntary conveyance may be fraudulent 
 against creditors whose debts were contracted after its execution, although 
 it be founded on a valuable consideration. The difference is, that in 
 such instances there must be *proof or circumstances to establish r^poi 
 the actual fraudulent intention. No charge of fraud of this sort is L 
 made in the pleadings, nor was the testimony offered which would be 
 necessary to enable the Court to decide on such charge. I do not there- 
 fore consider the point in issue. 
 
 "I shall first consider whether there was a sufficient delivery of the 
 slaves claimed, to transfer the legal title. The defendant, Abraham D, 
 Jones, in his answer, admits his intestate to have expressed his intention 
 to give the plaintiffs ten negroes ; but states that no particular slaves 
 were specified, and supposes the intention was never carried into effect by 
 an actual gift or delivery. Similar declarations of a future intention are 
 testified by the witnesses. The only evidence we have of the transfer's 
 having been actually made and of the slaves included in it, are the de-
 
 482 SOUTH CAROLINA EQUITY REPORTS. [*631 
 
 clarations of the intestate, testified by Mrs. Howell and Col. Chappell. 
 The former, after mentioning that she had frequently heard Major Good- 
 wyn, before marriage of the plaintiffs, express his intention to give his 
 daughter, the plaintiff, the negroes, Aggy and her family, and Betty and 
 her family, whom he had got by her mother, stated that after the mar- 
 riage, she had heard him say he had given them ; that the plaintiff 
 Blake, said, he could not then take them ; he could only hire or sell 
 them: that Mvijor Goodwyn stated himself to have replied, " when you 
 get a plantation I will send them to you ; in the meantime, I may as well 
 pay you hire as any one else :" — the hire was to be settled by the Messrs. 
 Jones. Major Goodwyn said, every one of his family knew the negroes 
 that were Eliza's. Col. Chappell testified to repeated conversations with 
 the intestate, in which he expressed his intention to give to his daughter 
 the negroes he had obtained with her mother ; that, in contemplation of 
 plaintiff's marriage, he declared his intention to give them the negroes, 
 among whom the witness thinks he enumerated the women Aggy and 
 Betty : After the marriage, witness understood from Major Goodwyn that 
 he had given the negroes, in pursuance of his promise ; witness thinks 
 he recollects him to have said, that he told them " there they are, take 
 them !" — Witness's clear impression was that he had given : Major Good- 
 wyn enumerated all the individual negi'oes he had given : The witness 
 recollects but a few of the names from the conversation, but had learned 
 them since : the women Aggy and Betty, their husbands and children, 
 and Martha, were the negroes specified. The witness was struck with 
 *RQ91 the circumstance *that more than ten negroes were enumerated — 
 -J the number Major Goodwyn had promised to give. Major Good- 
 win related the conversation he had had with the plaintiff Blake : said he 
 had agreed to pay him hire, to be fixed by the Joneses. Witness is as 
 certain as of any thing that ever happened, that Major Goodwyn dis- 
 tinctly said he had agreed to pay hire for the negroes enumerated. 
 
 "The question is, whether this testimony is sufficient to establish a de- 
 livery. It appears to me so. A delivery is to be proved in the saihe 
 w^ay as any other fact. It seems to me that the deliberate admissions of 
 the donor, that he has delivered, are about as satisfactory as his calling 
 witnesses to the transaction at the time. As is said in repeated adjudi- 
 cations, Brashears v. Blasiughame, 1 N. & M'C, 224 ; Reid v. Colcock, 
 lb. 603, when a party says he has given, he may be fairly presumed to 
 have known what is necessary to a gift, and to have observed the requisite 
 ceremonies. What shall consitute a delivery, has not perhaps been very 
 accurately defined. In Davis v. Davis, reported in a note to Brashears 
 and Blashinghame, the idea is, that any act will do which is significant of 
 the donor's intention that the transfer shall take effect at the time. The 
 same thing is to be found in other authorities. In Reid v. Colcock, and 
 Fowler v. Stuart, 1 M'C. 504, that seems to be regarded as a sufficient 
 delivery which would authorize the donee to take possession, without 
 committing a trespass. Now, when Major Goodwyn said, with reference 
 to these slaves, " There they are, take them," the plaintiff could not have 
 committed a trespass by taking possession of them, whether they were 
 present or not. The words seem to indicate, however, that they were 
 present ; and then it would constitute a delivery in the strictest sense of 
 the law, even applied to the livery of land. Blackstone says, "livery in
 
 *632] COLUMBIA, MAT, 1837. 483 
 
 law is when the same is not made on the land, but in sight of it only ; 
 the feoffor saying to the feoffee, " I give you yonder land, enter and take 
 possession." 
 
 " As observed in the case of Reid r. Colcock, parol gifts are regarded 
 with jealousy by the Courts, and only established on tiie most satisfac- 
 tory proof; because it frequently happens that men make loose or play- 
 ful declarations of having given, or intending to give, property to tiieir 
 children. I perceive nothing of this character in the declarations now in 
 evidence. Major Goodwyn's conversations with both the witnesses seem 
 to have been circumstantial *and detailed; particularly that with r^jj^oo 
 Col. Chappell, with whom he had so repeatedly conversed on the •- 
 subject of making such a provision for his daughter. It seems to me 
 that he went designedly into the detail for the purpose of making him a 
 witness of a transaction which had happened to pass without the pres- 
 ence of a witness. There would be more reason to suspect such declara- 
 tions, if the gift were made to one for whom the donor was under no ob- 
 ligation to provide, or if it appeared to be a sudden act, and not in pur- 
 suance of any previously expressed intention. But it appears he had a 
 deliberate purpose for years to make some such provision ; — the defend- 
 ant admits that he expressed such intention ; he was under a natural ob- 
 ligation, and according to the testimony of Col. John Taylor as well as 
 of Col. Chappell, under the obligation of his honor and promise to do 
 so. It is true, the provision was somewhat larger than he had expressed 
 his intention to make ; but if it were necessary to account for that, it 
 might be done perhaps by the circumstance that the negroes, Aggy and 
 Betty, with Martha, were those specifically that he intended to give, and 
 in giving them, it would have been necessary to separate the families un- 
 less he had given them entire. That the plaintiffs did not take posses- 
 sion of the slaves, is sufficiently accounted for. That they were left in 
 the infestate^s possession, might be a material circumstance, if we ivere 
 considering the claims of creditors ; hut, so accounted for, is not ma- 
 terial as between the parties themselves. If the testator were in debt 
 to his daughter, that would be a circumstance to corroborate the testi- 
 mony respecting his declarations of having made satisfaction; but he 
 certainly believed and acknowledged himself to be so. The agreement 
 to pay hire is a strong evidence of the transfer. This agreement is ad- 
 mitted by the defendant ; but he supposes it to have related to future 
 hire, after the contemplated gift should have been completed. Col. Chap- 
 pell, as I understand him, is positive that it related to the hire then ac- 
 cruing. This seems to me the more pi'obable. It is uidikely that for two 
 consecutive years he should be making arrangements to have the hire 
 valued for the purpose of ascertaining what he should pay after some fu- 
 ture period, when the value of the hire might be altered. If he had ac- 
 tually paid hire, this would be conclusive evidence of the transfer." 
 
 His Honor then went into evidence of the consideration, which he held 
 was sufficient to show that the transfer was made for a *valuable rif^r-ot 
 consideration ; and then decreed, that the defendants should de- '- 
 liver up the slaves to the plaintiffs, and account for hire. 
 
 The present bill was filed by the plaintiffs to establish their claims as 
 creditors of Goodwyn, alleging that his estate would be insolvent and 
 their demands unpaid, unless the slaves decreed to Mrs. Blake were sub-
 
 4.84 SOUTH CAROLINA EQUITY REPORTS. [*634 
 
 jected to tlieir payment ; and charging that no deed or bill of sale was 
 made, and as the alleged transfer was not accompanied by actual posses- 
 sion, that the transaction was fraudulent and void as to creditors — and 
 prays that the slaves may be charged with the payment of their demands. 
 
 The defendants, Blake and wife, in their answer, set up by way of 
 defence, that the decree in Blake v. Jones had established their right to 
 the slaves, not as a gift, but a sale for value in payment of a preceding 
 debt, which could not be affected by Goodwyn's debts. 
 
 The plaintiffs' demands were established before the Commissioner. 
 Exceptions were taken to his report ; and the statute of limitations 
 pleaded to Briggs' claims. 
 
 JoHXSTON, Chancellor. In the case of Blake v. Jones, Chancellor 
 Harper considered Mr. Jopes before the Court as a creditor. He 
 weighed the transfer of the slaves to Mrs. Blake against Jones' claims as 
 creditor, and decided that the transfer was valid. 
 
 Although I do not see how this decision can be reconciled with Smith 
 V. Henry, (1 Hill, 16,) I am bound by it. If the Appeal Court should 
 think fit to re-consider their opinion affirming Chancellor Harper's 
 decree, they can, upon the authority of Price v. Xesbit (1 Hill Ch. 445), 
 do so. But this Court possesses no appellate power. As the Chancel- 
 lor, whose decree has been affirmed, decided against Jones as a creditor 
 holding demands which existed at the time the slaves were transferred to 
 Mrs. Blake, the same principle, the evidence being the same, must sup- 
 port the transfer against Briggs. This obvious view of the case renders 
 it entirely unnecessary to consider the report and exceptions. 
 
 From this decree the plaintiffs appealed on the grounds : 
 
 1. That the gift or sale of the slaves to Mrs. Blake is void as to credi- 
 tors. 
 
 ^/.q--| 2. That the decree in Blake i'. Jones did not conclude the rights 
 -' *of the plaintiff, Jones, as a creditor ; and did not and could not 
 affect Briggs, who was not a party to the case. 
 
 Peareson and W. F. De Saussuj-e, for the appellants. 
 
 GhappeU and Gregg, contra. 
 
 Harper, Chancellor. It appears to me that the decree delivered by 
 myself in the case of the present defendants against the present plaintiff, 
 is sufficiently explicit in stating that the claim of Mr. Jones, in his char- 
 acter of creditor, was not considered. And it is manifest that it could 
 not be then considered. The bill was against Jones as administrator, for 
 the pnr[)Ose of establishing the gift or transfer of the slaves by his intes- 
 tate to the then plaintift's. This was the case he was called upon to meet. 
 But being a creditor of the estate, he had a right, if the estate were 
 insolvent, to say that though such transfer were made, it must be regarded 
 as fraudulent against creditors. This defence might perhaps have been 
 made by the answer, or might have been the subject of a cross bill But 
 the defence was not made by the answer nor the evidence, although inti- 
 mations were thrown out that the interests of creditors might be affected 
 by the determination. This, however, was not enough. To invalidate a 
 conveyance, the party must allege and prove it to be fraudulent. To do
 
 *635] COLUMBIA, MAT, 183 • 485 
 
 this, it was necessary to show, not only that debts existed at the time of 
 the transfer, but that, apart from the property transferred, the estate wag 
 insolvent. This showing must have been preliminary to any relief to be 
 afforded by the Court. The Court could not volunteer to direct an 
 inquiry into the concerns of an estate, for the purpose of establishing a 
 charge of fraud, upon a surmise that it might turn out insolvent. Plainly 
 it was impracticable for the present plaintiff, Jones, to make out that case 
 at that time. The lands of the estate were unsold and their value un- 
 known, and there were important and litigated concerns of the estate to 
 be settled. Could the Court have retained the bill for an indefinite length 
 of time, in order to afford a party the chance of making out a charge, 
 which, if he had alleged it, he ought to have been prepared to prove at 
 the hearing ? I have little doubt but that the determination, that the 
 transfer was founded on valuable consideration, was regarded at the time 
 as a determination in effect on the rights of Jones as creditor. Before 
 the case of Smith v. Henry, (1 Hill, 16,) an opinion seemed to have 
 *obtained, that to show a conveyance to be valid as against credi- r5ic/.qfi 
 tors, it was enough to prove that it was founded upon valuable ^ 
 consideration. And it may be that the decision in that case has sug- 
 gested the present proceeding. 
 
 The case being properly before us then, we are first to inquire whether 
 it comes within the principle of the case of Smith v. Henry. It appears 
 to me that it does not. The principle of that decision, as it is expressed 
 in very terms, is, that the law allows a debtor to give a preference to one 
 creditor over another, "but it will not allow him to secure an advantage 
 to himself, at the expense of creditors, as the price of such preference." 
 "An advantage to himself," in law, of which the function is to adjust the 
 rights of property, must mean an advantage in relation to property, pro- 
 fit or pecuniary advantage. It could not mean, for instance, the gratifi- 
 cation of taste or vanity. It was suggested that an advantage might be 
 obtained by quieting other creditors, in consequence of the appearance of 
 property in the donor. This is a sort of speculative and uncertain 
 advantage which it is difficult to estimate, and perhaps it would be 
 impracticable in a majority of cases for Courts to determine whether a 
 donor had secured such an advantage or not. Still I think the considera- 
 tion is entitled to its weight in considering the question of actual fraud 
 or fairness upon all the circumstances of the case. But whatever weight 
 it might be thus entitled to, it does not come within the principle of Smith 
 and Henry, which speaks in the most explicit manner of the certain, 
 direct benefit or pecuniary advantage to be derived from the use of the 
 property. I believe there is scarcely a sentence of the opinion, in rela- 
 tion to the matter, which does not illustrate this. " If a party, indebted 
 to several, goes to one of his creditors and says, ' my whole property is 
 not more than sufficient to pay you ; I will give you the preference, how- 
 ever, and assign to you, provided you will allow me to have the use of it 
 for a stipulated length of time, or until I work out the debt,' — this is 
 fraud in both." The use spoken of is of course for the donor's own 
 benefit. "The debtor gains what he is not entitled to at the expense of 
 creditors, and enjoys the property independently of them." The creditor 
 "gives a bribe for the preference." A bribe means, in law, a pecuniary 
 benefit. The expression — "use and enjoy the property as his own" — is 
 7oL. 1.— 5i
 
 486 SOUTH CAROLINA EQUITY REPORTS. [*636 
 
 frequently repeated. So in the quotations from Twine's case and Shep- 
 pard's Touchstone. In short, I cannot think that there is any ambiguity 
 in the decision, 
 
 :)f(>q^J-] *ii this case, the proof is distinct and certain that the donor 
 -J was to pay hire for the slaves. Can I say that his retaining pos- 
 session under this stipulation was the securing of a benefit to himself? I 
 do not see how. In general, a party who hires slaves may be supposed 
 to do so for his own convenience. But if the price be full and fair, the 
 law must regard the transaction as an exchange of equivalents. I do 
 not suppose that it would be generally advantageous to cultivate a man's 
 plantation by hired slaves. In this case, the hire was to be fair, for it 
 was to be valued by indifferent persons. And it appears from the testi- 
 mony of Mrs. Howell in the former cause, that Major Goodwyn con- 
 sented to hire the slaves, not for his own convenience, but for that of the 
 donee, Mr. Blake, who had no land. 
 
 I am well aware that this construction may occasion attempts to evade 
 the rule as laid down in the case of Smith v. Henry. But it must be the 
 business of the Court to guard against evasions. If the stipulation for 
 hire were kept secret between the parties themselves — if the hire were 
 very inadequate — if it remained for a long time not paid or demanded — 
 all these would be circumstances to show the stipulation to be colorable or 
 evasive. I should say that when the grantor retains possession after the 
 sale, the presumption of law is that he does so for his own benefit, and 
 that the burden is on him to show by the most satisfactory proof that he 
 obtained no advantage from it. This has been done in the present case 
 by the testimony of Mrs. Howell and of Col. Chappell — and indeed in 
 some degree by that of the present plaintiff, who admits that he knew 
 that a transfer of the slaves was intended, and that he and his father 
 were to value the hire — on which the claim for hire was established and 
 decreed against the estate of Major Goodwyn, when the present question 
 was not under consideration. 
 
 Though not within the rule of Smith v. Henry, and though there was 
 a valuable consideration, still the transaction might be fraudulent if 
 there were proof of an actual fraudulent intention. But the proof is 
 otherwise. The consideration was not greatly inadequate — though it is 
 said the Court will not look nicely into considerations. The donor then 
 possessed a very considerable estate, and there is nothing to show that 
 he had the slightest reason for believing himself to be approaching insol- 
 vency. The plaintiff did not certainly know the estate to be insolvent at 
 the hearing of the former cause. He did what he had long intended, and 
 *6381 *^^'^^t the plaintiff admits that he knew him to have intended, and 
 -^ what he was under the strongest obligations of honor and con- 
 science to do. Indeed I do not understand the charge of an actual 
 fraudulent intention to be urged on the part of the plaintiffs. The decree 
 dismissing the bill must therefore be affirmed. 
 
 Chancellors De Saussure and Johnson, concurred. 
 
 Chancellor Johnston. I concur in the result.
 
 *638] COLUMBIA, MAY, 1837. 487 
 
 Thomas M'Meekin, Administrator of Wm Brummet, v. F. K 
 
 Brummet. 
 
 S. B. and D. B. delivered two female slaves to a trustee for the use of C. P., and if 
 
 C. P. died without issue, " then the said negroes to return to the sons of 8. B. & 
 
 D. B. and their heirs forever." C. P. died without issue At the time of the gift, 
 S. B. and D. B. (the donors) had each one sou living, and afterwards S. P. had 
 other sons who died, and the son of D. B. died before the death of C. P. at whose 
 death the only living son of either of the donors was the son of S. P. who was living 
 at the time of the gift. This son recovered the negroes and their increase from 
 the representatives of C. P. and took them into possession : On a bill by the 
 administrator of the son of D. B. claiming one-half of the slaves under the gift, 
 it was held, that the limitation was to the sons of S. B. and D. B. living at the 
 time of the gift, jointly, as if it had been to them by name; and therefore the plain- 
 tiff was entitled to a recovery. [*638] 
 
 Where property is given by iviU, to be distributed among a class of persons at some 
 future time, or on some future contingency, all are let in who come into existence 
 before the time or happening of the event, and none can take but those answering 
 the description ; but such principle does not apply to a deed or gift iriter vivos. A 
 will speaksat the time of the testator's death, and those who answer the descriptions 
 of legatees at the time will take unless a contrary intention appears but a deed or 
 gift speaks at the time when made, and the donee under it must be such as 
 answers the description at that time. A future contingent interest may be given 
 to a person not in esse, but the intention must be plainly expressed ; and if there 
 be a person to answer the description at the time, it will never be applied to 
 another afterwards coming into existence who may come within the description. 
 [*639] 
 
 A contingent remainder is transmissible to the personal representative, when the 
 existence of the remainder-man himself at the time of the event does not consti- 
 tute the contingency. [*642] 
 
 The right of survivorship in joint tenancy, taken away by the Act of 1791. [*643] 
 
 In decreeing partition of slaves recovered by defendant in a former suit from a third 
 person, defendant allowed reimbursement for the expenses iu proportion to 
 plaintiff's interest. [*643] 
 
 Lancaster, July, 1836. The following Circuit decree presents the 
 case : — 
 
 Harper, Chancellor. On the 8th day of January, 1792, "William 
 Brummet delivered two female slaves to Zadock Perry, who signed a 
 receipt for them, in effect declaring a trust in them for the use of his (the 
 donee's) daughter. Comfort Perry, and the heirs of her body, " but should 
 the said Comfort die without children to heir the said negroes, then the 
 said negroes are to return to the sons of Spencer and Daniel Brummet, 
 and their heirs forever." It is understood that the slaves had been pre- 
 viously the property of the said Spencer and Daniel Brummet, who at 
 the time of the gift had each one sou living. 
 
 The defendant was the sou of Spencer Brnmmet ; and William Brum- 
 met, who afterwards died in childhood and before his father, and who is 
 the plaintiff's intestate, was the son of Daniel Brummet ; Comfort Perry 
 afterwards married Nathaniel Barber, to whom the slaves and their 
 increase were delivered in 1798, and in whose possession they remained 
 until the death of Comfort Perry, without issue, in 1829; at whose death 
 the defendant was the only living son of either Spencer or Daniel 
 Brummet ; Nathaniel Barber retained possession of the slaves till his death, 
 in 1832 ; after which they came into the possession of his administratrix, 
 against whom an action was brought by the defendant, a recovery had
 
 488 SOUTH CAROLINA EQUITY REPORTS. [*638 
 
 *Vqol ^^^^ *^® slaves *and increase, with the exception of one named Zed, 
 -J delivered up to him. It is agreed that Spencer Brummet had two 
 other sons, born after the gift in 1792, who died respectively in 1806 and 
 1801. The plaintiff in right of his intestate, claims one-half of the slaves 
 and damages recovered by the defendant from the administratrix of 
 Nathaniel Barber, as being equally entitled, under the limitation to the 
 sons of Spencer and Daniel Brummet, by the gift of 1192. No question 
 arises as to the validity of the limitation to the sons of Spencer and 
 Daniel Brummet; that was decided in the suit at law. (2 Hill, 543.) 
 The question is, who are to take under the limitation ? I am of opinion, 
 that it must be construed to the sons of Spencer and Daniel Brummet 
 then living, as if it had been in terms, to F. K. Brummet, son of 
 Spencer Brummet, and William Brummet, son of Daniel Brummet. 
 
 The argument on the part of the defendant, is founded on the class of 
 causes, in which when property is given by will, to be distributed a-mong 
 a class of persons at some future time, or on some future contingency, all 
 are let in who come into existence before the time or happening of the 
 event; and it is urged that none can take but those who then answer the 
 description ; and as the defendant was the only son of Spencer or Daniel 
 Brummet in existence at the death of Comfort Barber, that he alone 
 could take under the limitation. But all the authorities without excep- 
 tion apply to the case of a ivill, and no such principle has ever been 
 applied to a deed or gift inter vivos. As observed by Lord Mansfield, 
 in White v. Warner, quoted in Denn v. Bagshaw, 6 T. R. 512, a will 
 speaks at the time of the testator's death. And as laid down in other 
 cases, those legatees or devisees who answer the description at the time 
 of the death will take, unless a contrary intention appears from the in- 
 strument itself, A deed or gift iJiter vivos, speaks at the time of its 
 execution, and the grantee or beneficiary under it, must be such as 
 answers the description at that time. I do not mean to say, that a con- 
 tingent future interest may not be given by deed, to a person not in 
 existence, but that intention must be plainly expressed in the instrument ; 
 and if there be a person to answer the description at the time, it will 
 never be applied to another coming afterwards into existence who may 
 *rini ^^'^^s within the terms of the description. If this had been a 
 -J direct gift in words of the present time, to " the sous of Spencer 
 and Daniel Brummet," who must have taken ? Undoubtedly F K. and 
 William Brummet. " Sons" is a good name of purchase. It is said 
 that purchases are good by a certain description of the person without 
 surname or name of baptism ; as to the wife of J. S., to the eldest son, 
 second or youngest son, all the sons, &c., Co. Lit. [3 a.] So in Wild's 
 case, 6 Co. IT, it is said that if a man devises land to A and his children 
 or issue, who has children or issue living, here, according to the rule of 
 the common law as applied to a conveyance, the parent and children will 
 take jointly, they take as purchasers by the name of "children or issue." 
 But it is said, as distinguished from the rule of the common law with 
 respect to a conveyance, that if there be a devise to A and his issue or 
 children, who has no children, A will take an estate tail. The words 
 "children or issue," are words of purchase exclusively in a conveyance, 
 and cannot have the effect of enlarging the estate of the parent, as they 
 have in a will. The word " sons" is'no less a word of purchase. Neither
 
 *6i0] COLUMBIA, MAY, 1S37. 489 
 
 will it be implied, notwithstanding the express mention of "children or 
 issue," that they take a future interest as purchasers in remainder; 
 because that purpose is not plainly declared in the conveyance. So if 
 these slaves had been given to Comfort Perry for life, remainder to the 
 sons of Spencer and Daniel Brummet, I take it to be equally clear, that 
 there would have been a vested remainder in the sons of Daniel and 
 Spencer Brummet, who were living at the time of the gift. It is observed 
 by Lord Hardwicke, in Ellison v. Airy, 1 Ves, lU, in relation to a will, 
 " The Court generally takes it that there ought to be a legatee in being ; 
 and therefore will not construe a will to extend to persons not in being, 
 unless the testator shows his intention to be such by words in the will ; 
 which is the rule at common law, as to contingent devises or remainders, 
 for they never construe them contingent or executory unless compelled." 
 Here, in the case supposed, the plain import of the words would give 
 a vested remainder to the sons then living, and I am to seek for the law 
 which would let in others under a gift of this sort ; though this is the 
 case in which all born before the period of distribution are let in under a 
 will. I take the distinction to be this : under a will the words are taken 
 to apply to persons living at the testator's death ; but others may be let 
 in from the intention plainly* inferred from the provision : in a con- p^ „^ , 
 veyance, the words are taken to apply only to those living at the time ^ 
 of execution ; and the Court will not extend it to others, unless it is abso- 
 lutely impracticable to give it any other construction. An exception is 
 made to the general rule in the case of a will ; there is no such exception 
 in the case of a deed. It is absolutely necessary to regard the limitation 
 we are considering, as contingent in one respect ; the property is only 
 given over on the event of Comfort Perry's dying without children. But 
 there is no necessity whatever, for supposing a contingency with respect 
 to the persons who should take. If, as contended for on the part of de- 
 fendant, none can take but those who answer the description at the time 
 of the happening of the event, then how would the property have been 
 disposed of, if the defendant had also died before Comfort Barber ? In 
 all the cases on the subject of letting in legatees born after the testator's 
 death and before the period of distribution, the terms of the will ])hiinly 
 import a distril)ution among a class or classes of persons. As in Ellison 
 V. Airy, the limitation was to the younger children of a nephew equally 
 to be divided, and the terms could not be satisfied, without including all 
 younger children. In Congreve u. Congreve, 1 B. C. R. 530, "to divide 
 the money amongst all and every the child or children." In Attorney 
 General v. Crispin, lb. 386, "£50 each to the children of D. R," In 
 Heathe v. Heathe, 2 Atk. 121, "to all and every the child or children," 
 &c. So if the limitation were to the sons of one individual, this might 
 be held to import all his sons, and if he had but one at the time, neces- 
 sarily to import those hereafter to be born. But here are no words 
 directing any division or distribution ; the limitation is to the donees 
 jointly ; Spencer Brummet and Daniel Brummet had each a son, and 
 these fully satisfied the terms, " the sons of Spencer and Daniel Brum- 
 met." The general language of the cases, departing from the general 
 rule and letting in legatees not in existence at the death of the testator, 
 is that it is an indulgence to last wills, and to favor a provision for 
 families. This applies still more strongly to marriage settlements^ in
 
 490 SOUTH CAROLINA EQUITY REPORTS. [*641 
 
 which the terras "sons" or "children," always contemplate sons or children 
 hereafter to be born. But this was neither a will nor a marriage settle- 
 ment. Spencer and Daniel Bruramet were making no general settlement 
 of their affairs, or provision for their families. How am I authorized, in 
 *fi49l P'^^'^^^ ^^ ^^^^' ^^ conclude or conjecture that *they contemplate 
 -^ any other sons than those who then answered the description ? 
 They seem to have been bestowing a benefit on a third person ; they 
 parted with the entire property, and may well be supposed, on a contin- 
 gency not contemplated to happen, to have given this chance of benefit to 
 their sons then in existence and whom they knew. If they should have 
 other children, they might, in making a future settlement of their affairs, 
 made such disposition among them as might seem just and suitable. Then 
 if William Brummet was entitled under this limitation, was his right 
 transmitted to his personal i-epresentative on his death ? If he had been 
 solely entitled under such a limitation, there can be no question but it 
 would If this should be construed a gifc to Comfort Perry for life, re- 
 mainder to her children living at the time of her death, with contingent 
 remainder to William and F. K. Brummet in the event of their being no 
 children, (as would appear to be the true construction, according to the 
 determination of this Court in Henry v. Means, 2 Hill, 328,) then there 
 can be no doubt but that a contingent remainder is transmissible to the 
 personal representative, when the existence of the remainder-man himself 
 at the time of the event, does not constitute the contingency. But sup- 
 pose the entire estate to be given to Comfort Perry, subject only to be 
 divested in the event of her dying without having children. The rule, 
 as fully settled and recognized by the case of Jones v. Roe, 3 T. R. 88, 
 is that a, jjossib'thfi/ coupled with an interest is assignable, descendible 
 or devisable. See also Fearne, 548, 553, and the cases there collected. 
 Those were cases of executory devises, but the interest is exactly the 
 same as under a limitation of this sort, one being created by will, the 
 other by act inter vivos. Mr. Butler, in his note to Fearne, p. 384, 
 after speaking of conditional limitations, and springing or shifting uses, 
 observes, "Executory devises are the immediate subject of this part of 
 Mr. Fearne's essay, but his positions and illustrations are always directly 
 or indirectly referrible to the general doctrines of law on all limitations 
 of this description, whether in deeds or wills " And this is certainly true 
 with respect to the time within which they may be limited to arise ; 
 (Lloyd V. Carew, quoted, Fearne, 2t5,) or as to their being assignable, 
 devisable or transmissible. 
 
 As I have said the limitation is to the sons Jointly, there is nothing to 
 make a tenancy in common, and there is no doubt but in England, if one 
 *6431 ^^^ ^'^^^ before the determination of the contingency,* the other 
 would have taken the whole by survivorship, as indeed if one had 
 died after the determination and when the property had vested in 
 possession. 
 
 But under our statute of 1191, providing " That where any person shall 
 be, at the time of his or her death, seized or possessed of any estate in 
 joint tenancy, the same shall be adjudged to be severed by the death of 
 the joint tenant, and shall be distributed as if the same was a tenancy in 
 common;" "and that in cases of intestacy, the personal estate of the 
 intestate shall be distributed in the same manner as real estates are dis-
 
 ^643] 
 
 COLUMBIA, MAY, 1837. 491 
 
 posed of by this act." I believe the construction of our Courts has uni- 
 formly been, that any interest, of any sort, in which there may be a joint 
 tenancy, shall be severed by the death of one joint tenant, and the share 
 of the deceased go to his legal representative. 
 
 Indeed, if a person having such an interest in severalty, would trans- 
 mit it to his legal representative, and if upon the falling in of the property 
 it must be distributed under the act as personal estate, (which seems to 
 be matter of necessity, for otherwise there is no law for its distribution,) 
 there is the same necessity for applying the parts of the act quoted, to an 
 interest of the same sort held in joint tenancy. 
 
 In decreeing for the plaintiff, it seems but equitable that he should 
 reimburse the defendant half the expenses of the suit at law in which !he 
 slaves were recovered ; such expenses beyond mere costs, I suppose must 
 have been incurred. It is ordered and decreed, that a writ of partition 
 issue, to divide between the plaintiff and defendant the slaves received by 
 the latter of the administratrix of Nathaniel Barber, under the recovery 
 in the action of trover before mentioned ; — that defendant, allow account 
 for and pay to plaintiff, a moiety of the damages recovered and received 
 in the said action of trover, beyond the slaves specifically received, with 
 interest from the time that the same was received, and a moiety of the 
 hire of the said slaves for the time they have been in his possession ; that 
 the Commissioner take an account of the expenses incurred by the de- 
 fendant in the action at law before mentioned, and that plaintiff reim- 
 burse to defendant a moiety of the said expenses. Parties to this suit to 
 pay their own costs. 
 
 The defendant appealed. 
 
 *Per Curiam. The decree of the Chancellor is af3Brmed for the r^j^^i 
 reasons given. '- 
 
 Chancellors De Saussure and Johnson, concurring. 
 
 T. Williams and Eaves, for the plaintiff. 
 
 Clarke, De Saussure and Clinton, for defendant.
 
 492 SOUTH CAROLINA EQUITY REPORTS. [*644 
 
 James Wardlaw, for himself and Others, v. The Administrators and 
 heirs of Henry Gray. 
 
 A wife being entitled to one-half of her father's estate, proceedings in partition were 
 had, and a tract of land ordered to be sold by the Commissioner on a credit of one 
 and two years, with bond and mortgage to secure the purchase-money. The hus- 
 band purchased, and instead of giving bond and mortgage, gave his receipt to the 
 Commissioner for one-half the purchase-money, his wife's share, and for the other 
 half as guardian of the other distributees, and received titles. After the first, 
 but before the second instalment became due, the husband died, and the land was 
 sold by order of this Court, as his property, on a bill to apportion his assets. On 
 Ihe widow's presenting her claim for her share of the sale of the land, it was held 
 that she was entitled to payment thereof; and to the benefit of the security of the 
 mortgage which should have been given, or not being given, that the Act of the 
 Legislature in such cases gave one. [*644] 
 
 Guardian settled with his ward while an infant, and took a receipt in full and gave 
 his note payable at a future time for the balance due, and a payment was made 
 on it after the ward came of age. After the death of the guardian on the claim 
 of the ward to have the balance due on the note rank as a specialty demand 
 under the guardianship bond : Held, that the note was not payment of the preceding 
 demand ; its only effect being to postpone the time of payment ; and although the 
 postponement might discharge his securities, it still left the guardian liable on the 
 bond. [*649] 
 
 Payment by the Commissioner to the husband of his wife's distributive share of an 
 estate, without the order of the Court is wrongful ; and is not such a reduction 
 into possession by the husband, as that the marital rights attach. [*051] 
 
 Where the husband as administrator has wasted his wife's chooses, this is a sufl5- 
 cient reduction into possession ; but if the notes or bonds which he took as 
 administrator are forthcoming, the wife's right still exists. [*G53] 
 
 . Abbeville, June Term, 1836. 
 
 Bill to apportion assets, &c. Report made of demands against H. 
 Gray's estate, arranged in the order of priority ; and exceptions thereto 
 filed. 
 
 This case was taken up for the special purpose of considering so much 
 of the Commissioner's report as is covered by the 1st, 2d, 3d, and 5th 
 exceptions of the administrators of Henry Gray ; the rest of the report 
 being still before the Commissioner. 
 
 Johnston, Chancellor. 1. Of the four exceptions which have been 
 argued, the first depends on the following facts : 
 
 Henry Gray's wife, who was a daughter of the late Dr. Flanagan of 
 Newberry, being entitled as a distributee to one-half of her deceased father's 
 estate, proceedings in partition between the distributees were instituted 
 in the Court of Equity for Newberry district, where the estate lay, which 
 resulted in a decretal order that the Commissioner of that Court should 
 sell for partition, a tract of laud lying ou the Enoree, called the Mill 
 Tract, part of the real estate, on a credit of one and two years, with 
 interest from the day of sale, taking bond with surety and a mortgage of 
 *6451 ^^^ ^^"^^ to secure the purchase-money. Under this order, the *Com- 
 -J missioner sold the land to Henry Gray on the 5th of October, 
 1829, and without receiving either the money or bond and mortgage to 
 secure it, executed titles to Mr. Gray, the 17th of November following, 
 upon the following arrangement :
 
 *64:5'\ COLUMBIA, MAT, 1837. 403 
 
 Mr. Gray gave liira a receipt for one-half the ])urchase-moncy as his 
 wife's share ; and a similar receipt for the other half, as the share of the 
 other distributees, for whom he (Grray) was guardian or administrator. 
 
 On the 5th of April, 1831, (after the first, but before the second in- 
 stalment would have fallen due,) Mr. Gray died, leaving his wife living. 
 
 By an order in the present suit, the same land was sold since Mr. 
 Gray's death, as parcel of his estate ; and the avails are in Court to await 
 claims against his estate. 
 
 » His widow presents a claim for her share of the sale made to her hus- 
 band ; signifying at the same time, that if it is sustained, she will accept 
 in satisfaction a moiety of the last sale, being an inferior amount. 
 
 The Commissioner has sustained her claim ; and the first exception is 
 an appeal from his decision. 
 
 I am not entirely satisfied with the conclusion to which I have been 
 conducted by the very imperfect examination which my short time has 
 allowed me to give this very difficult matter. But my view is this : 
 
 A married woman cannot be deprived of her inheritance in land but 
 by deed strictly conforming to the Act of Assembly, or by an exact per- 
 formance of such conditions as the Court may impose. Mrs. Gray was 
 entitled to her land, or the substitute for it, which the Court ordered, as 
 the only condition upon which she should be deprived of it ; and she was 
 entitled to have that substitute placed in the situation in which the Court 
 ordered it to be placed ; and to have all the benefits incident to its being 
 placed in that situation. For it must be considered that the hu^oand 
 had no power to sell the land ; and in order to have it sold was obliged 
 to resort to the Court, and was a party to an order which placed the 
 purchase-money in the custody of the Court, not in his. The fund (or 
 the securities for it, which is the same thing,) was therefore in Court, at 
 the instance of Mr. Gray, in trust for his wife; and he could not obtain 
 possession of it without the order of the Court — an order which would 
 not have been made without provision for *the wife, unless by her r*/' ^/^ 
 consent. To all these advantages, Mrs. Gray was entitled, as ^ 
 terms on which the land was sold. 
 
 If bond had been givea for the wife's share of the land as required by 
 the order of sale, and the bond had neither been paid off nor assigned to 
 the husband, it would have survived to the wife. If it was paid off by 
 the husband, he could not draw the money (there being no order for the 
 distribution) without applying to the Court ; and then the Court might 
 have provided for the wife out of it. If it was not paid off, the Commis- 
 sioner could not assign it to him without permission : to say otherwise, 
 would be to assert that an officer of the Court may supersede the Court 
 itself in the exercise of the trust delegated to it in behalf of femes covert. 
 
 It is admitted that if Mr. Gray could, without the aid of the Court, or 
 by operation of law have got the money, his wife's right of survivorship 
 is gone ; and it has been argued, that if he had given bond, he would 
 eo instanfi, have become both debtor and creditor ; and so (on the au- 
 thority of the cases following Wankford v. Wankford, 1 Salk. 299, 3 lb. 
 262, 2 Bail. 60, 1 Hill Ch. Rep. 423,) have been rightfully disclrarged of 
 the bond, and put in possession of the money secured by it. But if he 
 had given bond, he would not have been indebted to himself, but to the 
 Court through its Commissioner, interposing as a trustee for his 'wife:
 
 494 SOUTH CAROLINA EQUITY REPORTS. [*646 
 
 nor could he claim payment unconditionally — which is, I apprehend, the 
 ground upon which the law remits money to a debtor's pocket. He 
 must be a debtor, or a creditor with an unconditional right to receive. 
 
 In these observations it is not intended to assert that a Commisssoner 
 may not, without leave, as is every day's practice, pay out money to one 
 unconditionally entitled to it, as for instance, to one entitled in his own 
 right, or as guardian, or as administrator; but merely to decide that 
 wdien the payment would deprive the Court of functions with which it 
 is invested for the benefit of parties before it, and who also have a right 
 to claim the exercise of those functions, and would be denied this right by 
 the payment, the payment is unwarranted. 
 
 Again, a Commissioner, like any other agent to sell, has no other au- 
 thority than that contained in the order under which he acts ; and cannot, 
 without violation of duty, convey but upon a compliance with the con- 
 dition set out in the order ; nor can a purchaser take a conveyance without 
 *fi^71 complying with the terms of sale *contained in the vendor's 
 -• authority, into with he is bound to look. A conveyance made 
 without compliance with the terms of sale, must be set aside at the in- 
 stance of any person interested. 
 
 Here the conveyance was upon no consideration. 
 
 Mr. Gray could not in the face of the terms of sale, which were notice 
 to him not only as party but as a purchaser, take a benefit to himself at 
 the expense of his wife. He could not, after invoking this tribunal to aid 
 him in disposing of his wife's land, and after placing the fund under his 
 control with power to provide for her out of it, defeat her rights and 
 frustrate the power of the Court for their protection by refusing to pay 
 the money into Court, or taking it into his own hands, under an assump- 
 tion that it need not be paid in, which is the same thing. 
 
 If the money had been paid to the Commissioner, the payment of it to 
 Mr. Gray would have been bad : in that case the Commissioner alone 
 might have been liable to Mrs. Gray. As it is, there was no payment to 
 the Commissioner ; in fact the purchaser did not pay for the land. The 
 owner of the land, Mrs. Gray, is entitled to payment, and to the benefit 
 of the bond which should have been given, and to the security of the 
 mortgage which was ordered, and which the Act of Assembly would have 
 set up if none had been ordered. 
 
 The first exception is overruled. 
 
 2. I feel as great difficulty about the second exceptien as about the 
 first. This exception depends on the following facts: 
 
 Mr. Gray became the administrator of his wife's deceased father ; he 
 was also the administrator or guardian of all his wife's co-distributees iu 
 that estate. 
 
 In this situation, under an order of the Ordinary, he sold bis father-in- 
 law's personalty, and took notes for the purchase-money. He died 
 without ever having had a partition of the estate ; the whole of which 
 belonged to the distributees, there being no debts against it. Since his 
 death, administration de bonis non on his intestate's estate has been taken 
 out by Mr. Harrington, to whom the administrators of Mr. Gray have 
 accounted for the shares of Mrs. Gray's co-distributees, but they decline 
 to account to him for Mrs. Gray's share, contending that Mr. Gray had 
 reduced that as husband. 
 
 i
 
 *647] COLUMBIA, MAY, 1837. 495 
 
 The Commissioner has allowed the claim of the administrator de bonis 
 non for Mrs. Gray's share (for the payment of which there *^re (-:)«/. io 
 assets belonging to Mr. Gray's estate) and the second exception L 
 eontends that the allowance was improperly made. 
 
 If my opinion, in Spann v. Stewart, 1 Hill Ch. 326, had been re- 
 ported, (a) I should have referred to it as my opinion on this point. As 
 
 * Spann vs. Stewart, (1 Hill's Ch. Rep. 326.) The decree of the Chancellor, so far 
 as relates to this point, is here-with published : 
 
 [What constitutes a reduction into possession of the wife's choses in action, by a 
 husband administrator. Per. Ch. Johnston.] 
 
 Johnston, Chancellor. The third position is, that so far as Dr. Wright reduced 
 his wife's share into possession, the plaintiff is entitled to a diminution of his liabil- 
 ity — (unless, I suppose; the amount reduced exceeded her share,) — and that his 
 conversion of the assets into cash amounted to such reduction. 
 
 The first branch of the position will not be controverted. The latter is question- 
 able. 
 
 There is no allegation in the bill, that Mrs. Screven's estate owes no debt ; so 
 that the decision in the case of Neil & Marsh, from Edgefield, does not apply. 
 
 The earlier cases are all, except one, cases in which the specific chattels which 
 came to the husband's hands during the marriage, remained unchanged at the wife's 
 death. It was scarcely contended in any of them, that the husband's possession 
 was a reduction. Spights vs. Meggs, 2 Brev. MS. 2;>8 ; 2 Dess. Rp. 138, N; Stur- 
 gener vs. Hannah 2 N. & M'C, 147 ; Bryne vs. Stewart, 3 Dess. 135 ; Elmes vs. 
 Hughs, lb. 155; gunch rs. Hurst, lb. 273. The only question of consequence was, 
 whether he was entitled to administer to the wife without account, under the statutes 
 22 and 23 C. 2, and 29 C. 2, or whether this right had been taken away by the Act 
 of 1791. It was held that there was no reduction, and that his right under the 
 statutes of Charles was taken away by our act. 
 
 In one of the cases, the husband never had possession during the coverture ; so 
 that that solely depended on the question whether the statutes of Charles were of 
 force. 
 
 There are some stray expressions in those cases, on which I may say something 
 hereafter. 
 
 Whether a husband, who if also administrator, has effected a reduction, depends, I 
 conceive, on this : Has he, by discharging, or by throwing off his trust, freed him- 
 self from accountability under it, for the property in question? Has he rendered the 
 property no longer trust-property ? Then he holds it in his own right. 
 
 If he has openly denied his trust-character and openly evinced an adverse holding 
 and the act of limitations has barred the cestui que trusts ; he holds the property as 
 his own. If he has ended his trust by discharging it, what he has left, is divested 
 of a trust character, and is held as his own. 
 
 But while ever he is liable to execute a trust out of the property, he has not reduced 
 it, but holds as trustee, whatever the form of that property may be. 
 
 A bare change of the property cannot be a reduction ; for, then, if he exchanges 
 slaves for other slaves, these last would not be liable to partition. Can it make any 
 difference if the exchange is for money ? 
 
 In Byrne & Stewart, the Court say "The marital rights cannot give him (the 
 husband,) the property, because it was not reduced to possession ; nor could it be, 
 /or the sale did not take place till her {the wife's, death." This referred to a sale by a 
 different person, in whose hands the property was. If it be inferred from this 
 expression that a sale is a reduction, it appears to me the inference is not law ; for, 
 then, every sale bj' an administrator would amount to a conversion, and the begin- 
 ning of an adverse holding of the avails ; and then four years would bar the distribu- 
 tees. 
 
 If an exchange of chattels for money divests the trust, it cannot be merely by 
 virtue of its being an exchange; for, then, any exchange, even for other chattels, 
 would divest it.
 
 496 SOUTH CAROLINA EQUITY REPORTS. [*648 
 
 it is, I can only say that my opinion has undergone no change since ^ I 
 delivered it : and that opinion is, that when funds come into an adminis- 
 trator's hands as administrator, he is still chargeable with them as 
 administrator, until he does some act indicating an intention to throw off 
 his trust character, Here the only act done by Mr. Gray was to sell the 
 property and secure the price by notes : an act which he was bound to do 
 by the order of the Ordinary, and which he could do only as adminis- 
 trator. 
 
 My difficulty has been about the extent to which this opinion was 
 modified by the appeal decree in the case of Spann v. Stewart. But 
 when I consider the current of authorities before that case, and the lan- 
 guage of the Court in Boozer v. Wallace, 1 Hill. Ch. Rep. 393, since 
 decided, and compare them with the opinion in Spann v. Stewart, I am 
 rather under the impression that the Court intended to modify the doc- 
 trine I have laid down only in the single case where a husband, adminis- 
 trator, has wasted his wife's share. 
 
 ^ -. *Here there are assets to answer for those received by Mr. Gray, 
 -I as administrator; and if I have correctly interpreted the decision 
 in Spann v. Stewart, it cannot apply to destroy the wife's right. 
 
 The second exception is overruled. 
 
 3. The third exception was not insisted on by any party, and is over- 
 ruled. 
 
 Can it be on account of the character of the thing exchanged, for ? because it is 
 money? Then it would follow that if an intestate left nothing but money, the 
 administrator would not be accountable. 
 
 It has always been held, however, that every trustee is liable, as such, for all the 
 profits made by him, by trading with the assets. If this principle be not abandoned, 
 no change of form will save the fund acquired from accountability. 
 
 The Court, in Elms v. Hughes, 3 Dess. 160 ; speaking of what constitutes a 
 reduction, say " whenever a suit is necessary to give effect to a right, this is a right 
 in action." This is a negative test of reduction ; but I suppose was not intended 
 as the only test. If it was, however, an accounting is a judicial proceeding. 
 
 An accounting is as much necessary, where the wife's distributive share consists 
 in money, as a partition is where it consists in slaves. The purpose in each case, is 
 to ascertain and declare the wife's share, and separate it from that of others. 
 Without an accounting, it is impossible to ascertain it ; since either she or some 
 others of the distributees may have been advanced, either partially or beyond their 
 shares, or settlements may have been made on them by the intestate. 
 
 The character of the holding may depend on the intention. Shall a man be con- 
 sidered as holding for himself, who declares that he holds as trustee ? Shall he be 
 so considered, unless he has declared, and that openly before creditors and distrib- 
 utees, so as to put them on their remedies, that he intends to hold for himself? It 
 is very little to require of a husband who wishes to pocket his wife's property, that 
 he shall account on the estate first. 
 
 I see no evidence of an intention in Dr. Wright to reduce his wife's share. Does 
 it consist in receiving the dividends ? Was he not bound to collect the debts ? Does 
 it consist in the sales ? Is there evidence that he was not acting under orders from 
 the Ordinary? 
 
 The amount of the matter is, that he has not accounted. And has he, therefore, 
 ceased to be accountable ? 
 
 We have a case on the very point. In Phaelon & Houseal, 2 M'C. Ch. Rep. 423 ; 
 the defendant received during his marriage, upwards of three thousand dollars in 
 money belonging to the intestate, which he held till 1816, wben his wife died, and 
 thence to 1821, supposing all the time that she was the sole distributee. In that 
 year, other distributees appeared and demanded partition with him ; and it was 
 decreed.
 
 *649] COLUMBIA, MAY, 1837. 497 
 
 5. The fifth exception objects to the Comrajssiouer's allowance of 
 Philip Cromer's claim as a specialty demand. 
 
 Mr. Gray, who was the guardian of Philip Cromer, came to a settle- 
 ment with his ward on the 7th of January, 1830 — the ward being still 
 an infant — (being born on the 20th of August, 1809,) — when the balance 
 due the ward appearing to be about $1,300, he paid him part in cash, 
 and gave him his negotiable note with some time to run for the residue, 
 and the ward gave him a receipt in full. Mr. Gray lived several months 
 after the ward came of age, and paid hirn a $100 bill on it; but whether 
 this payment was made before or after tjie ward's majority, is uncertain, 
 there being no date to the credit endorsed on the note. After Mr. Gray's 
 death, and after the ward attained age, Mr. Gray's administrator made a 
 I small payment *which is credited on the note. It is also in proof, r;jt/.p,j 
 that upon being called on by the administrator, after he came of age, ^ 
 the ward admitted that he was then of age, and was satisfied with the 
 settlement he had made. The note is still in possession of the ward, 
 and was produced on the investigation of his claim, which claim is to have 
 the balance due on the note charged on the guardianship bond upon 
 giving up the note. 
 
 It appears to me that the infancy of the claimant at the time he gave 
 the receipt and took the note, is an immaterial circumstance ; I think if 
 he had done the same thing after coming of age, he still would be enti- 
 tled to the relief he seeks. 
 
 The note in question was part of the consideration of the receipt. It 
 has been repeatedly held that a note is not payment of a preceding 
 demand, unless the note itself be paid. The only effect of taking the new 
 security is to conform the time for payment of the preceding demand 
 to that fixed in the new. The taking of this note postponed the time for 
 paying the bond until the note fell due. The postponement might dis- 
 charge Mr. Gray's securities, but left him liable on the bond after the 
 note came to maturity, *if the note be produced and given up to 
 
 repel the presumption that it has been paid off. 
 
 [*651 
 
 The case of Tobey v. Barber, (5 J. R. 68 : 1 M'C. 449,) which ap- 
 pears to be well supported by preceding cases, and is expressly relied on 
 in our own case of Barelli v. Brown, is, I think, decisive of this excep- 
 tion. 
 
 The fifth exception is overruled. 
 
 The administrators of Henry Gray appeal from this decree, and will 
 endeavor to sustain the first and second and fifth exceptions above men- 
 tioned. To the foregoing statement, they will, as to the second excep- 
 tion, add, that although H. Gray's estate is amply sufficient to meet these 
 demands of his wife if they stood alone, yet that it is unable to pay more 
 than perhaps one-third of his debts ; and that none of the notes taken 
 by Henry Gray, as administrator, at the sale of Reuben Flanagan's 
 estate, remained in the hands of Henry Gray unpaid at the time of his 
 death, so far as any of the settlements had between the administrators of 
 Henry Gray, and the administrator de bonis non of Reuben Flanagan, 
 or any of the papers which came to the hands of the administrators of 
 Henry Gray, show. 
 
 WarcUaiv and Perrin, for appellants. 
 
 Burt, contra.
 
 ■498 SOUTH CAROLINA EQUITY REPORTS. [*651 
 
 Johnston, Chancellor. In this case, it is the opinion of the Court, 
 that the circuit decree upon the first exception was correct. 
 
 In offering any thing further in support of that decision, it might be 
 sufficient to refer to the opinion delivered by Mr. Justice Butler, at the 
 last December Term of the late Court of Appeals, in the case of Pitts v. 
 Wicker ; in which every judge present, eight in number, including every 
 chancellor, concurred. 
 
 The argument on the present occasion is, that the circuit decree is in- 
 consistent with the principles upon which the Chancellor who pronounced 
 it, professes to place it. That the Chancellor evidently acted upon the 
 maxim that equity will regard that as done, which should have been done. 
 But that admitting this principle to be true, it was aot correctly applied 
 to the case : for that although in virtue of the maxim, it might be cor- 
 rect to assume that a bond and mortgage had been executed by Mr. 
 ^ -. Gray ; yet that he *had a right to pay the money even before it 
 J was due : that if he had paid the money to the Commissioner, he 
 thereby extinguished the wife's interest in the bond. That the fund thus 
 paid in, became thenceforth the exclusive legal property of the husband ; 
 which he was under no necessity to ask the aid of the Court to obtain. 
 
 Passing by the obvious remark that whatever right Mr. Gray might 
 have to make payment in anticipation he never in fact made any pay- 
 ment, let us suppose that he did pay the purchase-money to the Com- 
 missioner. The question then is, had he a legal unqualified right to the 
 money thus paid in. 
 
 The case of Hood v. Archer, cited by Mr. Justice Butler, is in point, 
 to show that he had no such right. In that case, the wife's inheritance 
 was sold by the sheriff. The purchaser paid over the price to the 
 sheriff. The wife then died : and the question was, whether the money 
 belonged to the husband, by virtue of his marital rights, or whether the 
 right to it did not remain iu the wife, so as to vest in her administrator. 
 The Court held that it belonged to the administrator of the wife. 
 
 If Mr. Gray had paid the money to the Commissioner, had he such a 
 legal right to it that he could have recovered it at law from that officer ? 
 Money in the hands of the Commissioner is in the hands of the Court 
 itself. No action can be maintained against him in another tribunal, to 
 deprive him of it. The comity of Courts forbids it. The application 
 for the money must be to the tribunal in whose custody it is. This prin- 
 ciple, the correctness and importance of which will be at once perceived, 
 was decided a few years ago in Charleston, in a case (I believe the style 
 of it was Bovvden v. Hutsell) carried up from a circuit decision of Chan- 
 cellor Harper. 
 
 If, then, the money when paid in, still belonged to Mrs. Gray, and her 
 husband could not obtain it but on application to this Court, the ques- 
 tion is, what order would the Court have made on such application ? 
 
 Clancy says, " If the wife's fortune be within the reach of the Court," 
 " Equity will not suffer it to be removed out of its jurisdiction until an 
 adequate provision be made for her, unless she has been already suffi- 
 ciently provided for; or that, on her j:>ersonaZ examination, she ivaives 
 *6531 ^^^ benefit of this protection." — (Clancy on Married Women, 
 188.) — The same author again and again speaks *of this doctrine
 
 *653] COLUMBIA, MAT, 1837. 499 
 
 as "a settled rule of our Courts of Equity," and refers to numerous 
 authorities which fully sustain him. 
 
 So far does this doctrine extend, that although the wife's trustee may, 
 if he thinks fit, deliver her property to the husband ; yet if a bill be once 
 filed, whereby this Court obtains a control, the trustee will no longer be 
 at liberty to do so ; and if he pay over any of her money after such 
 suit begun, the Court will hold it a payment by wrong, and set it aside, 
 (M'Caulay v. Phillips, 4 Yes. 18.) 
 
 The argument then, which maintains that the Court will approve the 
 act of the Commissioner in paying the money to Mr. Gray, on the ground 
 that upon application it would have ordered him to pay it, seems to be 
 unsupported by authority. The Court would never have so ordered, 
 unless by the wife's consent. 
 
 And when we consider that the Court would hold a payment made by 
 a trustee after suit brought, to be wrongful for the want of the wife's 
 consent, or the order of the tribunal : would it not be plainly absvird to 
 suppose that when the Court is itself the trustee, it would depart from 
 its own rule ; or that it would sanction that in its own officer which it 
 would condemn in every one else who happens to come under its control ? 
 
 The opinion of the Court upon the second exception is different. 
 
 It appears by the additional facts stated in the brief, that Mr. Gray 
 did not only convert the assets, but that he wasted them, so as to bring 
 himself within the rule in Spann v. Stewart. 
 
 If the notes or other securities which he took for the property which 
 he sold as administrator, were forthcoming, or could be poiuted out, I 
 have the authority of all my brethren for saying that in such a case they 
 would consider the wife's right indubitable. But when he has wasted 
 the assets, the majority of the Court is of opinion, this is sufficient evidence 
 of a reduction to destroy his accountability as administrator. 
 
 The appeal on the fifth exception has been abandoned. 
 
 Let the circuit decree be reformed according to this opinion. 
 
 Chancellors De Saussure and Harper, concurred.
 
 INDEX. 
 
 [The folios in this Index refer to the * folios. The syllabus formerly appeared as siilenotes, which 
 we haTO collected and placed at the commencement of cases. Therefore, whim the Inde.>c refers to a 
 folio, the text will be found at the * folio, and the syllabus at the beginning of the case.] 
 
 ACCOUNT. 
 
 Mode for stating accounts against trustees. Jordan v. JIu?it, 145 
 
 See Evidence, 3, 4, 5. Guardian and Ward, 8, 4. Hire, 1, 2. Interest, 
 1, 2. Partnership, 1. Release. Tenant for life, 2. Waste, 1. 
 
 ADMINISTRATORS. 
 
 See Execdtohs and Administrators. 
 
 AGENT— ATTORNEY, 
 
 Where one, by power of attorney, authorized another to sell and convey a ship, 
 and the attorney sold and received payment, but by mistake or ignorance 
 executed the bill of sale in his own name instead of his principal's, in 
 consequence of which it was declared void at law: — Held, that although 
 th'e bill of sale could not operate as a conveyance at law, it was such an 
 agreement as a Court of Equity will carry into effect against creditors of 
 the vendor who had subsequently obtained legal liens. Welsh v. Usher 
 and others, 168 
 
 See Commissioners, 1. Evidence, 3, 4, 5. Frauds, Stat. of. Interest, 1. 
 Limitations, Stat, of, 3. Release. Specific Performance, 9. 
 
 AMENDMENT. 
 
 See Decree, 1. Pleading, 1. 
 
 ANNUAL BALANCES. 
 
 See Interest, 2. 
 
 ANNUITY. 
 
 A bequest in these words, "it is my will that the sum of one hundred and 
 fifty dollars, be paid out of the profits, or moneys arising out of my estate, 
 to my son J. C, as a maintenance for him, for and during his natural life 
 
 and no longer," held to be an annuity, raiterson v. Leith, Ex' or 16 
 
 See Limitation of Estates, 1. 
 
 ANSWER. 
 See Decree, 3. Pleading, 2. 
 
 APPOINTMENT. 
 
 1. A. H. having provided for his lawful children, and having several illegiti- 
 mate children, and about to marry their mother, in order to provide for 
 his natural children, and his intended wife, and the issue of the marriage, 
 executed a deed of all his real estate and twenty-one slaves, in trust for 
 himself during life, and at his death one-fourth part thereof for his natural 
 children in fee ; one-third of the remainder to the use of his intended wife 
 YOL 1.— 55
 
 502 INDEX. 
 
 for life, and then to the children of their marriage in fee ; and the other 
 two-thii-ds of the remainder to the use of such persons as his intended 
 ■wife shoukl appoint, reserving to himself the right to revoke or alter such 
 appointment, and in default of appointment, to his said -wife, her heirs, 
 executors and assigns. The marriage took place, and A. H. acquired 
 some property after the execution of this deed. By his will, afterwards 
 executed, he referred to and confirmed the settlement, and by a general 
 residuary clause, gave all the rest of his estate to the children of hip last 
 niarriSge, and then declares "it is his wish" that his wife and children 
 remain on the plantation until another place be provided, and that Ms mills 
 be rented and his negroes hired out, &c., and other dispositions inconsis- 
 tent with the deed. The wife made no appointment. Held: 1. That the 
 deed did not authorize A. H. to change its uses, but merely to control his 
 wife's appointments ; 2. That the will was not intended, and could not 
 operate, as a revocation of the uses of the deed, and as a declaration to 
 other uses ; and 3. That on the death of A. H his wife took an absolute 
 estate in the remaining two-thirds described in the deed. Brunson and 
 
 "^Vife V. Hunter's Administrator and heirs, '-•••• 484 
 
 2. Where one conveyed in trust, reserving a life estate to himself, a portion 
 of his estate to such persons as his wife should appoint, and in default of 
 appointment to her heirs and assigns, on the death of the husband the 
 
 wife takes an absolute estate. lb 490 
 
 See Husband and Wife, 9, 10. Powek. 
 
 ASSETS. 
 
 Lands in the hands of the heir or devisee, are liable to the debts of the 
 deceased, whether the executor has assets or not. Under the stat. 3 & 4 
 W. & M. the heir and devisee may be sued jointly, and the executor cannbt 
 be joined at law. "I'he heir or devisee, however, has an equity against the 
 executor to be reimbursed out of the personal assets: and when the creditor 
 conies into equity to charge the real estate, he must make the executor a 
 party to prevent circuity of action, thereby at once afibrdiug the heir or 
 devisee relief; but where there is no executor or administrator and no 
 personal assets in the state, no such party can or need be made. Vernon 
 
 ^ Co. v. Valk and Wife 2G0 
 
 See Executors and Administkators, 7, 8, 22. Legacy, 2, 3, 4. 
 
 ASSIGNMENT. 
 
 The plaintiff had paid one hundred dollars to the testator in his life time, in 
 part price of a negro; after testator's death, six out of eight of the resi- 
 duary legatees, gave their bond to the administrator with the will annexed 
 relinquishing their interest in the one hundred dollars, and authorizing the 
 payment of their shares therein to the plaintiff: — Held, that the bond was 
 an assignment of their interest in th'at fund to the plaintiff. Sims v. 
 Sims, adm'r 62 
 
 See Debtor and Creditor, 2, 3, 5, G, 7. Executors and Administra- 
 tors, 23. Husband and Wife, 1, 3. Lien, 1. 
 
 ATTACHMENT. 
 
 1. The garnishee dying pending the proceedings, a judgment entered up against 
 
 him alter his death is irregular, and may be set aside at law : and if the 
 executors appeared and consented to the trial, at most it could only be 
 regarded as a judgment against them, and not rank as a judgment 
 against the garnishee, so as to give priority over other creditors who had 
 not obtained judgment in his lifetime. I'arker, Ex'trix, v. Creditors of Parker, 38 
 
 2. By the Attachment Act things capable of being identified, such as specific 
 
 chattels and evidences of debts, are bound by the levy so that the gar- 
 nishee cannot after service deliver them to the owner, or any one else, 
 without being liable for their value; and in this sense, the attachment
 
 30 
 
 INDEX. 503 
 
 is said to have a lien from tlie time of its being levied : but, in the case 
 of a debt due by the garnishee to the absent debtor, it is incapable of 
 being identified specifically as his estate, the service of the attachment 
 creates no general lien on the estate of the garnishee; and the only way 
 the money so due can be bound is, that by the service of the attachment 
 the garnishee is, to the extent of his debt, made the debtor of the plaintitf, 
 but no lien exists against him until judgment is actually entered against 
 him. lb 
 
 See Debtor and Creditor, 8. 
 
 AUCTIONEER. 
 
 See Frauds, Stat. of. 
 
 BOND, 
 
 A paper with blanks as for a penal bond, the condition only filled up with the 
 sum but not the name of the obligee, dated, and signed by the defendant, 
 under the circumstances of the case, perfected and set up as a bond, and 
 
 payment decreed. Executors of Gray v. Humph 8 
 
 See Assignment. Delivery, 1. Fraudulent Conveyance, 4. 
 
 BOND DEBT. 
 
 1. The costs of a judgment on an administration bond against the surety (or 
 
 co-administratrix,) who was subrogated to the rights of the creditor, cannot 
 rank as a bond debt. Smithy. Smith 112 
 
 2. Guardian settled with his ward while an infant, and took a receipt in full 
 
 and gave his note payable at a future time for the balance due, and a 
 payment was made on it after the ward came of age. After the death of 
 the guardian on the claim of the ward to have the balance due on the 
 note rank as a specialty demand under the guardianship bond : Held, 
 that the note was not payment of the preceding demand ; its only effect being 
 to postpone the time of payjnent ; and although the postponement might 
 discharge his securities, it still left the guardian liable on the bond. 
 Wardlaw v. Administrators and Heirs of Gray 649 
 
 CIVIL LAW. 
 
 The civil law may be consulted in explanation of our law, but not as authority. 
 
 Fable v. Brown, Ex' or SCO 
 
 COMMISSIONER. 
 
 The Act of 1824, p. 21, requiring Masters and Commissioners to report annually 
 to the Court "what guardians and trustees have not annually made their 
 returns," and "to set apart certain days for reference of such accounts," 
 &c., was intended to protect wards and cestui que trusts whose funds were 
 under the control of the Court, and not to impose duties on the Commis- 
 sioner which would be impossible or useless and nugatory : And therefore 
 the Commissioner is not guilty of any neglect of duty in not reporting to 
 the Court, the case of a guardian who had finally settled with his ward, 
 and that fact had been before reported to the Court ; or where a guardian 
 was dead, and his death had been previously reported ; or where a guardian 
 had removed from the State, and which had been before reported. Ex 
 
 parte 3Iiller, ComW 378 
 
 See Commissions, 3. Husband and Wife, 28. 
 
 COMMISSIONER'S REPORT. 
 
 The Commissioner having in his report on the sales in partition, stated that he 
 had paid over her share to a distributee who was of full age, and the report 
 confirmed is not an adjudication which will concluda plaintiff as to the fact
 
 504 INDEX. 
 
 of payment, that was not referred to the Commissioner, and was not in 
 issue. And the confirmation was not intended to establish the fact of pay- 
 ment, but to approve it if done. 3Iesservey and others v. Barelli 580 
 
 See Peactice, 1. 
 
 COMMISSIONER'S SALE. 
 
 The Commissioner may, under the order of the Court, make sales of land lying 
 
 in another district. Bank-v. Trapier and others 25 
 
 See Comjiissioxee's Repoet. Guardian and Waed, 7. Husband and 
 ^ViFE, 20, 28. 
 
 COMMISSIONERS. 
 
 1. A private agent is not entitled to commissions unless by contract. Lever v. 
 
 Lever — 166 
 
 2. Executors and administrators are not entitled to two and a-half per cent, in 
 
 addition to ten per cent., for making interest. By the Act of 1789, they 
 are not allowed ten per cent, for letting out to interest and receiving in 
 again, nor ten percent, for making interesi, but two and a-half for letting 
 out, and two and a-half for taking in, until the commissions reach ten per 
 centum, which is the maximum. Mafsey, Massey and others 495 
 
 3. For investing and loaning out money under the order of the Court, the 
 
 Commissioner is not entitled to commissions for extra services, but is 
 restricted to the amount allowed him by law in his character of Commis- 
 sioner. Bonay. Davant 528 
 
 4. A surviving partner winding up and settling the alFairs of the firm, is not 
 
 entitled to commissions unless stipulated for by contract. The Act of 
 1745, (P. L. 202-?>) relates only to trustees who have the managemnt of 
 the estates of " infants or minors." Cooper v. Admr's of Reid 549 
 
 CONSIDERATION. 
 
 See Deed, 2. Deliteet, 1. Estoppel, 1. Feaudulent Conveyance, 2. 
 Husband and Wife, 11. 
 
 CONTRIBUTION. 
 
 1. Contribution by legatees to a child born after the execution of the will and 
 
 before the testator's death, decreed. Heath v. Heath and others 101 
 
 2. Contribution among volunteers under separate conveyances, refused. Thomp- 
 
 son and Wife V. Murray and Wife 210 
 
 'i. Contribution to remove a general lien on the whole property will not be 
 allowed among volunteers, unless there was an inevitable necessity that 
 part of the property should pay it: the necessity cannot exist where the 
 donor is still solvent, for it seems then the creditor might in equity, be 
 forced to exhaust the donor's estate before proceeding against the property 
 
 conveyed. lb 213 
 
 See Subrogation. AVill, 9. 
 
 COSTS. 
 See Bond Debt, 1. Executors and Administrators, 29. 
 
 COUNSEL FEE. 
 
 1. On a bill against an executor to account for his administration, he will not be 
 allowed a credit in making up the accounts, for a counsel fee paid by him 
 in the case for litigating questions in which he was individually interested 
 and which were decided against him ; nor does it vary the case that some 
 of the credits claimed by him, were contested and adjudged in his favor. 
 Sherman v. Angel, ez'or 26
 
 INDEX. 505 
 
 2. 'When there is a necessity for an executor or administrator to come into a 
 Court of Equity to obtain its judgment, a counsel fee paid by biui will be 
 refunded out of the estate. JJrt/son v. Xichols, 121 
 
 DEBTOR A^'D CREDITOR. 
 
 1. The common law prerogative of the King, to be paid in preference to all 
 
 other creditors, does not apply to the State. The riglit of the State 
 depends in this respect altogether on the statute law. "^The Act of 17^«, 
 prescribing the order in which the debts of a deceased person shall be 
 paid, gives the preference to the State only where the intestate is imlcbted 
 to the State and a citizen in equal degree; and therefore a junior judgment 
 in favor of Commissioners of the poor, (conceding it to be a debt due to 
 the public,) is not entitled to be paid in preference to senior judgments of 
 other creditors. Keckle;/ y. Kecklcy, 2oG 
 
 2. A debtor may lawfully assign his whole estate for the benefit of such creditors 
 
 as shall release him. . Niolon \. Douglass and others, 443 
 
 3. A debtor executed an assignment of his whole estate to trustees, in trust for 
 
 the benefit (after discharging existing liens) of all such creditors as should, 
 within six months, establish their demands, accept dividends and give 
 releases in full ; and excluding others who should refuse to comply with 
 these terms: — On a bill by a creditor who refused to accept to set aside 
 the deed of assignment as fraudulent and void, it was held to be valid, lb. 444 
 
 4. A failing debtor may give preferences among his creditors, and it seems 
 
 impracticable to prevent the exercise of this right. The subject considered 
 
 in reference to a bankrupt system. lb 446 
 
 5. In all the cases the vice lies not merelj-^ in requiring a release, but in 
 
 putting the assets in such way as to be inaccessible to ordinary process, 
 and then establishing such control over them in the grantor, that he could 
 at his pleasure make or withhold payment. lb 453 
 
 6. Our insolvent debtor's act recognizes the right of a debtor to assign for the 
 
 benefit of releasing creditors. Jb 454 
 
 7. Bill by joint owners of a steamboat against another joint owner and his 
 
 attaching creditors, the joint owner, defendant, having been the agent of 
 the company, and being a balance due from him to the comoanj', on which 
 plaintiffs claimed a lien on his shares : — Held, that the plaintiffs as creditors 
 in possession, were entitled to the lien in preference to the attaching 
 
 creditors. Seabrook ■v. Mose, 553 
 
 See Agext. Attachment, 1. Bond Debt, 1, 2. Decree, 4. Fraudu- . 
 LENT Conveyance. Husband and Wife, 11, 12, 13, 14, 15. 10, 17, 
 18, 19, 20, 25. In.junction, 1. Lien. Marriage Settlement, 3, 
 4, 5, 11. Parties, 1, 2. Sheriff's Sale, 2. Waiver 
 
 DECREE. 
 
 1. The Court will exercise the right of correcting errors in its decrees in ex 
 
 parte cases and cases by consent, so long as they remain unexecuted: and 
 where, on a bill for partition, an order of sale was granted by consent of 
 parties, in which by mistake, a slave belonging to one of the parties and 
 not to the estate, was included in the property to be partitioned — before 
 the sale was made, the Court on a petition for that purpose, corrected the 
 error. Edgerton and others v. Muse and Wife, 53 
 
 2. Rent and hire to which plaintiffs were entitled under a former decree set 
 
 out in this bill, now allowed. Adm'rs of Johnson v. Fx'ors v. of Johnson, 297 
 
 3. A decree obtained by fraud may be set aside oa an original bill for that 
 
 purpose ; but on a bill to obtain satisfaction of a former decree, the defcml- 
 ant in his answer cannot avail himself of this so as to resist performance. 
 Caldwell, Adm'r, v. Giles, 548 
 
 4. A former decree against one as administrator on a bill to compel delivery of 
 
 slaves claimed under a gift from intestate, will not conclude his rights as 
 creditor, on a bill by him against the former plaintiffs to set aside the 
 
 conveyance for fraud. Jones ij- Bri(j(js v. Blake and Wife, G35 
 
 See Evidence, G. Pleading, 2.
 
 506 INDEX. 
 
 DEED. 
 
 1, ^Vliere ore signed a deed conveying several slaves in trust to his son witli 
 
 limitations over, and kept the deed ; neither the trustees nor the son being 
 present; and the son had possession of some of the negroes at the time, 
 and afterwards got the others ; but there was no proof that he ever recog- 
 nized the deed: Held, that there was not such evidence of delivery of the 
 deed as to subject the property to its limitations. Jackson and others 
 v. Inabnit 415 
 
 2. A deed without any consideration at its execution may be supported by 
 
 parol proof of a subsequent valuable consideration. Banks v. Broicn and 
 others, 563 
 
 See Appointment. Estoppel, 1. Recokding, 1. Waiver. 
 
 DELIVERY. 
 
 1. Defendant J. I. M., with a view to prevent family discord, and to relieve 
 himself from the suspicion of having exercised undue influence over his 
 mother, who had by deed and will given him the bulk of her estate, 
 executed bonds in trust to his brother for the payment of certain sums for 
 the benefit of the eldest daughter of each of his sisters ; left them with his 
 brother, and having informed the parties interested of this proceeding, 
 went to Europe, where he still remains, leaving, however, a large estate 
 here in the care of his brother; the bonds meanwhile remaining unpaid, 
 and the trustee having taken no measures in relation to them: — Held, that 
 there was sufScient evidence of delivery ; that the bonds were irrevocable, 
 and sustained by a sufEcieut consideration, and the trustee was decreed to 
 account Fogg and Wife v. iliddleton 591 
 
 2. A gift executed by delivery is binding. Actual manual delivery is not 
 
 necessary ; it is enough that the donee have possession with the assent 
 of the donor ; and therefore where the defendant was an executor in 
 possession of an estate, the management of which required extraordinary 
 trouble, and the legatees wrote to him to retain one thousand dollars of . 
 the funds in hand as a present, which he accepted, and afterwards filed a 
 bill for an accourt: Held, that the plaintiifs were bound and defendant was 
 allowed this sum in making up the accounts. Esswein v. Seigling, E.c'or,... 601 
 
 3. What will be sufficient evidence of delivery to constitute a gift. Jones ^ 
 
 Briggs \. Blake and Wife, 632 
 
 See Deed, 1. Emancipation of Slaves, 2. 
 
 DEVISE. 
 ^ See Will. 
 
 DEVISEE. 
 See Assets. Judgment, 1. Parties, 3. 
 
 DOWER. 
 
 1. When the wife may claim dower, and at the same time take under her hus- 
 
 band's will — The cases on the subject considered. Gordon, AdrnW, v. Stevens. 47 
 
 2. To exclude the right of dower, the intent must appear by express words, or 
 
 by clear and manifest implication. lb 48 
 
 3. A devise of lands to trustees to sell, or with directions to executors to sell, 
 
 passes the estate subject to dower: — and where the testator bequeathed 
 to his wife all the property which he obtained by her in marriage, and 
 directs that his estate be sold to pay his debts and provide for his children : — 
 Held, that the wife was entitled to dower, notwithstanding she accepted the 
 legacy, and that the sale of the land must be subject to that right. lb.... 49 
 
 4. A wife is not dowable of an estate held by the husband as trustee. Thompson 
 
 and WifeY. 31urray and Wife 213 
 
 5. A renunciation of dower on a mortgage cannot operate beyond. the estate
 
 INDEX. 507 
 
 conveyed so as to have the effect of n, perpetual bar— it cnn only postpone 
 the claim of dower to the satisfaction of the lien, and the land stands 
 as a security for the debts secured by the mortfiape unincumbcrfd by 
 the wife's rights; the other creditors have no right to the aid of tlie wife's 
 dower for the jiayment of their debts: tlierefore where the wife had 
 renounced her dower on mortgages by her husband, and after his dcatli 
 on marshaling his assets in the Court of Equity the mortgage de))ts 
 were paid out of the personalty, it was held that the widow w'as" entitled 
 to her dower, and a sum of money assigned in lieu thereof, was ordered 
 to be paid to her, out of the land which was ordered to be sold f(n- the 
 
 payment of debts. Kecklcy v. Keckley 252 
 
 6. The widow is entitled to interest or mesne profits up to the time her 
 
 dower is assigned to her. Gordon, Admr, v. Stevens 420 
 
 EMANCIPATION OF SLAVES. 
 
 1. Before the Act of 1800, emancipation was permitted in any way in which the 
 
 master might signify his intention. — That statute does not render any act of 
 emancipation which does not conform to its provisions void, but merely 
 subjects the slave so illegally emancipated to seizure; and until seizure, 
 the slave so emancipated will be regarded as free. Monk, Adnir, v. Jenkins 13 
 
 2. The delivery of a deed of emancipation, after long lapse of time, and the 
 
 enjoyment of rights under it may be presumed; but the only delivery 
 contemplated by the Act of 1800, is the lodging it with the clerk to be 
 recordeil, and it is the duty of the master to lodge it. Ih 14 
 
 3. Lodging a deed of emancipation with the clerk, is a sufficient recording; 
 
 and with respect to any person seizing the slave, if the deed was in the 
 office at the time of seizure, the presumption would be that it was lodged 
 in due time. lb 14 
 
 4. The Act of 1820 (p. 22j relates to emancipation within the State only, and 
 
 does not prohibit the removal of slaves to another State for the purpose 
 
 of being emancipated. Frazier and others y. Frazier's I'Jx'ors 31-t 
 
 5. The owner of property may by his will direct his executors to dispose of it 
 
 in any way he could; and as he could in his lifetime have removed his 
 slaves to another State, and there have emancipated them, he may by will 
 direct his executors to remove and emancipate them. lb 315 
 
 6. Testator by his will directed his negroes to be hired out during the life of 
 
 his wife, and at her death declares "it is my will and desire that tlie whole 
 of my negroes be set free by my executors, and the amount of money 
 arising from the hire of the said negroes be equally divided among them; 
 and if the hire does not amount to one hundred dollars each, it shall be 
 made up out of the other part of my estate: the interest of the money is 
 to enable them, with the assistance of government, to go to St. Domingo 
 to be colonized, or to any part they with government maj' choose." — Held, 
 that the intention of the testator was that his slaves should be removed 
 to parts where emancipation is lawful, and there be emancipated; that 
 such will was legal and would be enforced : and on a bill by the next of 
 kin claiming the slaves, the executors were ordered to remove the slaves 
 to parts beyond the State wiiere emancipation is lawful and there set them 
 free; that they defray the expenses of removal from the interest on tiie one 
 hundred dollars bequeathed to each of the slaves, and that they pay the 
 legacies of one hundred dollars each to them after being so emancipated. 
 
 lb 316 
 
 See Slaves, 5, G. 
 
 ESTOPPEL. 
 
 1. The question considered whether a party may in contradiction to his 
 acknowledgment in his deed show that the consideration has not in fact 
 been paid. It seems that although he may show other and further con- 
 siderations consistent with the deed he may not, except in case of fraud or
 
 508 INDEX. 
 
 usury, contradict the deed by showing that no consideration was received. 
 
 Gist V. Davis and others ;•• ^^o 
 
 2. None but parties and privies are estopped by a judgment. — Giving a bond 
 of indemnity to the sheriif for not paying over money to a claimant, will 
 not make one a privy so as to be concluded by the judgment against the 
 sheriif for the money ; although the sheriff gave him notice to defend 
 the action and he actually did defend it. The verdict would be con- 
 clusive against him in an action by the sheriff on the bond, but not as 
 
 to others. lb 345 
 
 See Executors and Administrators, 1. Husband and Wife, 7. Trust. 
 
 EVIDENCE. 
 
 1. Generally the declarations of a grantor made after a sale cannotbe admitted 
 
 to impeach the sale; but where there is a community of interest and 
 design in several, or circumstances showing a conspiracy between the 
 grantor and the defendants to defraud the plaiutitF, such declarations 
 would he admissible. Belly. Coiel 109 
 
 2. Where the items in an account book were read over to the party charged, 
 
 who objected to a few items only, the book may be received in evidence as 
 his admission. Lever v. Lever 159 
 
 3. On a bill for an account against an agent, his books, if the entries are made 
 
 in the usual course of business, are admissible against the principal; 
 especially when both parties are dead and there is strong corroborating 
 evidence of the correctness of the books. Sinclair ^- Kiddle v Price, {note) 160 
 
 4. Unless the books of an agent purport to contain an account of all payments 
 
 to and for his principal, he will not be confined to them in discharging 
 himself. Lever v. Lever 161 
 
 5. V/here the books of an agent profess to contain an account of all receipts, 
 
 payments and services, on account of tiie agency, and are offered in 
 evidence by the agent, he shall not be allowed any other charges than 
 those there contained. Sinclair and Kiddies. Price, [note) 163 
 
 6. A decree against executors of an executor, is prima facie evidence against the 
 
 legatee of the first testator on a bill to charge the legacy. M'Mullin, Ad- 
 ministrator, v. Brown, 460 
 
 7. On a question as to identity of slaves, it is admissible to prove that the 
 
 slaves in question were called certain names, and said by other negroes 
 
 to belong in a certain gang. Horry and Trapier v. Glover and other 517 
 
 8. On the question as to the identity of slaves, where the original stock are all 
 
 dead, hearsay coming from negroes, that those claimed are descendants, is 
 admissible. lb 527 
 
 See Witness. 
 
 EXECUTION. 
 
 A \qvj \s prima facie evidence of satisfaction: — but this presumption maybe 
 rebutted by showing that satisfaction in fact, has not and could not have 
 resulted from the levy by reason of senior executions which would have 
 covered a larger amount than the value of the levy. Peay v. Fleming and 
 others, 99 
 
 See Injunction, 1. Legacy, 1. Lien, 2, 4. Sheriff's Sale, 1. 
 
 EXECUTORS AND ADMINISTRATORS. 
 
 1. The grant of administration has relation to the death of the intestate, and 
 legalizes the intermediate acts of the administrator; and a judgment 
 against an executor de son tort, will be valid against him after he has 
 regularly administered, and binds the estate, unless fraud or collusion be 
 shown. The administrator in such case will be estopped from denying his 
 former executorship. Walker, Adm'r, v. May and others, 23 
 
 -. An executor or administrator is not discharged, from accounting to a 
 legatee for a fund assigned to him by the other legatees, on the ground that
 
 INDEX. 509 
 
 he has no assets in his hands in consequence of the legatees having pur- 
 chased at his sale more than the amount of their shares. Sims v. Sims, Adm'r. G'J 
 
 3. If an administrator, on a sale ol his intestate's i)roperty, take any other 
 
 security than that required by tlie terms of the order for sale, he becomes 
 personally responsible, and if loss ensue it must fall on him. I'eay v. 
 Fleming and others, 98 
 
 4. Where an executor is excused from making interest, or permitted to retain 
 
 funds in his hands without being charged witli interest, generally the 
 burden is cast on the other side to show that he has made interest or 
 used the funds himself; in such cases, it seems that tlic answer of the 
 executor should deny that he has made interest or used the funds. Chest- 
 nut and WifeY. Strong, Ez' or 150 
 
 5. In the absence of proof, the legal presumption is that the notes given to the 
 
 executor at his sale, were paid at maturity, lb 151 
 
 6. Pending suit against him, the executor, after tender to one of the legatees, 
 
 deposited the amount due with the Commissioner, with instructions 
 not to pay it over; the legatee afterwards demanded it: — Held, that he 
 was entitled to interest from the time of demand. lb 1.51 
 
 7. How far the Court will interfere to prevent the negotiation by an executor 
 
 or administrator, of notes or bonds taken by him on sale of the deceased's 
 effects. Thackum and Wifey. Longworth, 274 
 
 8. An executor being indebted to the defendant the executor of another estate, 
 
 by bond secured by mortgage, while solvent, transferred to defendant 
 in payment of his own debt, bonds taken on a sale of his testator's estate, 
 and defendant gave up his bond and mortgage, and paid over the money 
 to the legatees. The executor became insolvent, and on a bill by the 
 legatees of his testator, it was held that the defendant was not liable for 
 the money received by him,on the bonds — the equities being equal the law 
 must prevail, lb 275 
 
 9. After the division of an estate and the appointment of a guardian for a minor 
 
 legatee, the executors are no longer accountable for the income of the estate 
 assigned to the minor; his guardian is alone entitled to possession of the 
 estate, and must account acconlingly. Adnir's of Johnson v. Ex'ors of 
 Johnson, 284 
 
 10. Liability of co-executors for the acts of each other considered and the 
 cases on the subject examined. lb 289 
 
 11. The result of the cases seem to be that where by an act done by one executor, 
 any part of the estate comes to the hands of his co-executor, the former 
 will be answerable for the latter in the same manner as for a stranger 
 whom he had enabled to receive it — and there is no distinction in respect 
 
 to their liability, between legatees and creditors, lb 293 
 
 12. An executor who applied to the ordinary for an order of sale and returned 
 the sale bill held liable for the amount of the sale, although his co-executor 
 assisted in the sale and received part of the money, lb 295 
 
 13. An executor or administrator is only required to manage the estate in his 
 charge as a prudent man would his own, and in case of loss, the question 
 of his liability cannot be resolved by any general rule but depends on 
 the particular circumstances of each case. Bryan v. Mulligan, Ex or 361 
 
 14. Generally it is the safer rule for an executor to sell the produce of the 
 estate in the market usually resorted to; but when acting in good faith and 
 under a reasonable expectation of a greater protit, he shipped the cotton to 
 Liverpool, instead of selling it in Charleston, and the Liverpool price was 
 less than he was offered in Charleston, he will not be chargeable with the 
 loss, lb 864 
 
 15. An administrator selling the personal estate of his intestate under the 
 order of the Ordinary, is allowed to become a purchaser, when be sells fairly 
 and pays the full value. Therefore a purchase of a-slave by an administrator 
 at his own sale, under an order of the Ordinary at a fair price and without 
 fraud, was sustained against the bill of the distributees seeking to set it 
 aside. Stalling s and Wifes. Foreman, Adm'r 405 
 
 16. The cases in this State, as to purchases by executors, administrators 
 and other trustees, at their own sales, reviewed. lb 405
 
 510 INDEX. 
 
 17. On a review of tlie rights and liabilities of executors and administrators at 
 common law and under our Acts of Assembly, it seems they may acquire 
 their testator's or intestate's property, provided the sale is fuirly made 
 under the authority of the will or the order of the Ordinary, and that the 
 price is 'he true value of the property. Stallings ei ux. v. Foreman, AdinW. 408 
 
 18. The reason of the rule which avoids the purchases at his own sale of a 
 trustee to sell, does not apply to executors and administrators ; and those 
 entitled by law to administi-atiou, would often decline it if prevented from 
 buying. lb 409 
 
 19. Where an executor, who was also a legatee purchased at his own sale, made 
 under the order of the Ordinary, and appointed one agent to sell and 
 another to buy ; his purchases were set aside by Chancellor Johnston, on 
 the general principle, that for the prevention of fraud, a trustee to sell 
 shall not be permitted to buy at his own sale;- and if he does, his pur- 
 chases maybeconiirmed or set aside, at the option of the parties interested. 
 Britton and Wife v. Johnson 434 
 
 20. Purchase by an administrator, (who was also a distributee,) at his own 
 sale, at a price less than the appraisement, set aside by Chancellor John- 
 ston, on the ground that a trustee to sell cannot purchase at his own sale, 
 and the administrator ordered to account fo.' the difference between his bid 
 and the real value. Decree confirmed by Appeal Court, as to setting aside 
 the sale, but modified by ordering a re-sale of the property. Crispin v. 
 Taylor, (note) 435 
 
 21. The practice on purchases by executors and administrators at their own 
 sales, being set aside, is to order a re- sale of the property, and if more be 
 bid than was bid before, that it go to the highest bidder ; if not, the first 
 sale is afBrmed. Jb 430 
 
 22. Where an administrator rendered an erroneQ,us statement of assets, and 
 paid the creditors their proportion thereof, and took their assignments for 
 the balance: — Held, that he should not be permitted to retain to his own use 
 the funds afterwards collected. As a trustee, he cannot make profit to 
 himself of the trust estate. — Assignments set aside, errors corrected, and 
 administrator ordered to account. Robinson and others y. Gist, Adm'r 467 
 
 23. Bill by administrators de bonis non against defendant to account as former 
 administrator, his administration having been revoked. There were but 
 two distributees, of whom defendant's wife was one : he had paid the debts 
 and obtained an assignment from the other distributee. IJe/d, that the 
 validity of the deed of assignment could not be impeached by the plaintiff. 
 If obtained by fraud, none but the distributee or his representatives 
 could impeach it, and it was a fraud on his creditors, they only could 
 complain. And for the same reason the will of the distributee disposing 
 
 of his interest in the estate, was rejected. Thompson, Adm'r, v. Buckner.. 500 
 
 24. And a decree in favor of defendant's wife for alimony settling her 
 portion of her father's estate to her separate use, is irrelevant and in- 
 admissible. The administrator de bonis nan cannot call defendant to 
 account for her benefit. She might enforce her own decree. lb 501 
 
 25. Nor cnn the administrator de bonis non in such case sustain the bill on 
 account of judgments remaining of record unsatisfied ; especially where 
 from lapse of time they may be presumed to be satisfied, and where the 
 judgment creditors are not parties claiming payment. To require defendant 
 to account on that ground, they should come in and swear that their 
 judgments are unsatisfied, and it should appear that the defendant had 
 notice of their demands within the year; after that, without notice, he 
 would not be liable as administrator, and the creditors would be left' to 
 their remedy against the distributees. lb 501 
 
 26. Administration ought in no case to be granted, but to kindred or creditors, 
 or on their application, and where there are neither, the Ordinary is only 
 authorized to grant administration (7(/ co/%f«(;?a 6o»a. lb 503 
 
 -7. An administrator cannot set aside the gifts or contracts of his intestate, 
 on the ground, that they were made in fraud of creditors. He has no 
 other rights than his intestate had. King v. Clarke 613 
 
 ^». Administrators of the same intestate in different States, are so far in-
 
 INDEX. 511 
 
 dependent of each other, that a judgment against one furnishes no right 
 of action against the other. There is no privity between them. King v. 
 Clarke CI 4 
 
 £0. An executor or administrator who litigates in good faith, shall be allowed 
 costs out of the estate ; but where, with sutFicient funds in his hands, he 
 suffers himself to be sued, having no just defence, he must pay the costs 
 himself. On judgment by default, he would be liable for the costs 
 de bonis propriis at law; (Giles v. Pratt, 1 Hill, 244,) and in Equity, he can 
 only be excused by showing a want of funds. Davis v. Davis, Adm'r 377 
 
 See Account. Assets. Attachment,!. Commissions, 2. Council Fkk, ], 2. 
 Delivery, 2. Guardian and Wakd, 3. Husband and Wife, 5, 0. Im- 
 
 PEOVEMENTS, 2. JUDGMENT, 1, 2. LEGACY, 1. LIMITATIONS StAT. OF, 3, 
 
 6, 7, 8, 9. Parent and Child, 1, 2. Parol. Evidence, 2. Slaves, 6. 
 
 FEES CONDITIONAL. 
 
 The Doctrine of Fees Conditional Considered. — Edwards v. Barksdale,... 196 
 See Limitation of Estates, 2, 3. 
 
 FRAUDS, STATUTE OF. 
 
 1. Oa a sale of land at auction, the auctioneer is the agent of both parties, 
 
 and his memorandum in writing is sufficient to take the agreement out of 
 the statute of frauds. Ep. Church of 3/aco?i\. Wiley 590 
 
 2. And when the auctioneer made a pencil memorandum on a loose slip of paper 
 
 at the moment of sale, and shortly afterwards entered the sale in his sales 
 book, the latter is regarded as the true entry. lb 590 
 
 3. And where the auctioneer entered the sale as made to the agent the contract 
 
 m.ay be enforced agarnst the principal when be is discovered ; and the " 
 authority of the bidder need not be in writing. lb 590 
 
 FRAUDULENT CONVEYxiNCE. 
 
 1. General rules for determining whether conveyances be fraudulent, and the 
 
 cases on that subject considered. Union Barik v. Toomer 31 
 
 2. When a consideration is paid in order to avoid the conveyance, the Court 
 
 must be satisfied of an actual fraudulent intention and the preponderance 
 of authority seems to be, that the purchaser must be a party to the fraud. 
 lb 82 
 
 3. S. II., being infirm and unable to manage her business, conve3'ed her land 
 
 and most of her slaves to the defendant, he paying certain debts, (which, 
 after inquiry, were believed to be all she owed,) and an annuity for her 
 life equal to the appraised value of the property deducting the debts: after 
 the death of S. H. judgment was obtained against her executors on a bond 
 executed by her as surety, and which existed before the conveyance: on 
 a bill by the judgment creditor to set aside the conveyance on the ground 
 of inadequacy of price and charging that it was fraudulent as to creditors; 
 there being no evidence that the defendant knew of this debt, or that fraud 
 was intended, it was held that the conveyance was valid. lb C3 
 
 4. One, apprehensive that a decree for a large amount would be had against 
 
 him, and with a view to defeat it, gave his bond to the defendant, his 
 son, for twenty thousand dollars, on which judgment was obtained, and 
 moneys arising from the sales of property by the sheriff claimed under it. 
 On a bill to set aside the bond and judgment as fraudulent and void, the 
 defendant admitted that the sum of three hundred and eighty-two dollars 
 was all that was really due to him, and claimed that the judgment should 
 stand as a security for that amount: — Held, that the defendant, as a party 
 to the fraud, was entitled to no favor; that the Court would not examine 
 into the fraud to ascertain if any thing be really due; and the bond and 
 judgment being fraudulent and void, the defendant should derive no benefit 
 from them. Fryer and Wife\. Bryan 56 
 
 5. When actual fraud in a judgment or conveyance is clearly proved, it is wholly 
 
 void and will not be permitted to stand as a security for what is actually due ;
 
 512 INDEX. 
 
 but -when Equity infers fraud from the circumstances and relation and 
 character of the parties, it is at the discretion of the Court, to allow the 
 secufity to stand good for what is really due. Parker v. Holmes 95 
 
 6. A deed from a man to a womnn with whom he had lived in a state of adultery, 
 
 held to be voluntary, and the property thereby conveyed, (after exhausting 
 the assets at the death of the grantor,) decreed liable to his debts. Ilar- 
 g roves and Wifoy. Meray and Wife 227 
 
 7. There is a ditJ'evence between an absolute sale and a mortgage in respect 
 
 to the effect of the grantor's retaining possession : in the first it is in the 
 common course that possession should be changed, and if it is not. it is 
 evidence of fraud ; but this is not the course in the case of a mortgage, 
 and the mere circumstance of the mortgagor retaining possession until 
 condition broken, is not of itself evidence of fraud. Gist y. Pressley 325 
 
 8. Even after condition broken a mortgage is still different from an absolute 
 
 sale.— It is not the usual course that the mortgaged property should be 
 seized immediately after condition broken — some degree of neglect in this 
 respect will not infer fraud ; great neglect may. lb 328 
 
 9. A creditor seeking to set aside a voluntary conveyance for fraud, must shaw 
 
 that his debt existed at the time of the conveyance by such evidence as 
 would establish it in an action at law ; and that he cannot be paid unless 
 the conveyance is set aside. King v. Clarke, 617 
 
 10. The decision in Smith v. Henry, (1 Hill, 1(),) that a debtor in giving a 
 preference by conveyance of his property, to one creditor over another, 
 shall not secure an advantage to himself at the expense of creditors as the 
 price of .such preference, means a certain direct benefit or advantage to 
 be derived from the use of the property. And therefore, where a debtor 
 transferred slaves to his daughter in satisfaction of a precedent debt, and 
 retained possession of them under an agreement to pay hire, the convey- 
 ance was held to be valid, and was sustained against the other creditors. 
 Jones ^ Briggs v. Blake and Wife, G3G 
 
 See Decree, 4. Ex'oks and Adm'es, 27. FIusband and Wife, 25. Judg- 
 ment, 2. Jurisdiction of Chancery, 1. xMarriage Settlement, 9, 
 10, 11, Witness, 1. 
 
 GIFT. 
 See Delivery, 2, 3. Judgment, 2. 
 
 GUARDIAN AND WARD. 
 
 1. Under what restrictions the Court of Chancery may order the funds of an 
 
 infant under its control, to be paid to a guardian appointed and residing 
 
 in another State. Ex parte Heard, 55 
 
 2. Guardian intending to remove from the State with her wards, the Court 
 
 required her before entering on the appointment to give bond for the return 
 of one of them at a suitable age to receive his education in this State, and 
 of both, when required by the Court. Ex parte Martin, 71 
 
 3. When from the facts, an executor who was also guardian might be charged 
 
 with the receipt of moneys either as executor or guardian, he must account 
 in the latter character; for whatever funds he had in his hands as 
 executor, were by operation of law, transfered to him as guardian. 
 Adm'rs,of Jolmson v. Ex" ors of Johnson, 285 
 
 4. A parol discharge of a guardian by his ward just after coming of age, with- 
 
 out an account, will not bar an account against the guardian. Ih 28G 
 
 5. The security of a guardian is liable for the default of his principal, to the 
 
 amount of the penalty of the bond, and not merely to the value of the pro- 
 perty set out in the petition praying the appointment. lb 28( 
 
 G. Guardian who is co-tenant with his ward liable for his rent, although he 
 may not have used beyond his own interest. He should have made her land 
 productive. Harley and Wifev.De Witt 370 
 
 7. Plaintiff's and their mother being jointly entitled to an estate the latter 
 administered and proceedings in equity for partition were had in which
 
 INDEX. 513 
 
 the mother was appointed guanliaii of her iiifnnt chiklren, an<l a snle was 
 ordered for one-third cash, aud credit for the balance witli bond and mort- 
 gage to secure the purchases. At the sale the motlier purcbas-eil the 
 principal part of the estate, both real and personal, and gave bond and 
 mortgage for the real, but paid no money, and afterwards had the bund 
 and mortgage assigned to herself as guardian, gave her rocpipt to the 
 Commissioner as such, for the shares of lier children, and took titles. 
 Defendant knowing the terms of the sale, (having acted as agent of the 
 mother in the management of the estate,) and that no money was in fact 
 paid, obtained a mortgage on the real estate purchased by her, to secure 
 a debt due by her individually: Ildd, that the mortgage of the defendant 
 must be postponed until plaintiff's claims are satisfied. Messervey and 
 others v. Barelli, 507 
 
 8. Where the Commissioner, under the order of the Court to deliver to the 
 
 guardian the portions of her wards, whether in money or bonds, delivered 
 up the guardian's bond given for purchases on sales for petition, this is 
 not a discharge of the bond and a satisfaction of the mortgage to secure it ; 
 and defendant, with a knowledge of the facts taking a mortgage from the 
 guardian of the property purchased, takes subject to the equities of the 
 wards. lb 574 
 
 9. The real estate of the guardian purchased at the partition sale and mortgaged, 
 
 first ordered to be sold and applied to the plaintiffs' claims before that 
 
 mortgaged by guardian to defendant. lb 582 
 
 See Account. Bond Debt, 2. Executors and Administrators, 9. Lien, 5. 
 Limitations, t-TAT. of, 9. Mistake. Parent and Child, 1, 2. 
 
 HEIR. 
 
 See Asset?. Husband and Wife, 2, 3. Judgment, 1. Limitation of Estates, 
 3, 4, 5. Marriage Settlement, 2. Next of Kin, Parties, 3. 
 
 HIRE. 
 
 1. The ten pound rule in regard to the hire of negroes is not an arbitrary rule 
 
 of value, but may be varied with the circumstances of the case. It 
 imports no more than that the trustee of a planting interest who renders 
 no accounts shall not be charged less than ten pounds per hand, and does 
 not apply where greater profits were or might ordinarily have been made. 
 Ilarley and Wife v- De Witt, 3G9 
 
 2. The rule does not apply where the hands were engaged in other and more 
 
 profitable pursuits than planting. Jb 370 
 
 See Legacy, 4. Usury, L 
 
 HUSBAND AND WIFE. 
 
 1. The husband's assignment of his wife's chose in action passes her interest 
 
 only where he has the power to reduce it into possession; — and where 
 he has this power, his assignment will be regarded as a reduction into 
 possession: but where he has not the power of reducing into possession, his 
 assignment does not transfer the property, until by subsequent events he 
 comes into the situation of being able to reduce it into possession ; and 
 then the previous assignment will operate on his actual situation, and the 
 property will be transferred. Matheney y. Guess and others., 6(> 
 
 2. In England the husband may acquire the absolute right to his wife's chose 
 
 in action, even after her death, by administration ; but the rule is different 
 in this State, for under our statute of disti-ibutions, he would only be 
 entitled to his distributive share as her heir at law. Jb 69 
 
 3. Where the wife was entitled to an estate expectant on the death .of her 
 
 mother and during the lifetime of the wife and the tenant for life, the 
 husband for a valuable consideration, conveyed his wife's interest in the 
 estate, and she died before the death of the tenant for life : — Held, that the 
 assignment of the husband operated only to the extent of his own share of
 
 514 
 
 INDEX. 
 
 his wife's estate under the Act of distributions, and did not defeat the rights 
 
 of her children to the remainder. Ilarhy and Wife v. De Witt 70 
 
 4. When the husband goes into the Court of Equity to obtain possession of his 
 
 ■wife's choses in action, a suitable provision will be made for her and 
 her children. Heath v. Heath and others •••• -lOl 
 
 5. Executrix, being in the receipt of the annual profits of an estate which 
 
 the will directs shall be paid over to the legatees on their coming of age 
 or marriage, instead of paying it according to the will, loaned out the 
 whole amount from time to time to the legatees, and among the rest to 
 the husband of one of them: on the parties being brought into this Court, 
 and the wife insisting on a settlement:— //eW, that if the money advanced 
 by the executrix to the husband was intended as a payment of his wife's 
 share, the executrix will be allowed credit; otherwise, if as a mere loan. 
 Reference ordered on this point. Ih It^o 
 
 6. The wife's interest in the shares of two deceased children, which could not 
 
 have been reduced into possession by the husband at the time the executrix 
 advanced to him, is not subject to the payment of such advances. The_ 
 fact that the husband was not entitled to possession until the termination' 
 of a life estate, precludes the possibility tliat a payment of his wife's 
 interest therein was intended. lb •_••• 105 
 
 7. A feme covert may sustain a suit for her separate estate, her husband being 
 
 joined in the bill; in such case she will not be estopped by his^ deed, 
 made in his individual capacity. Boijkin and Wife v. Ciplcs and Wife 203 
 
 8. "Where no trustee has been appointed, the husband will be regarded as 
 
 trustee of his wife's separate estate; but on bill filed by husband and wife 
 for such estate, the Court will appoint another trustee, lb 203 
 
 9. Under what circumstances, a feme covert may dispose of property by 
 
 way of appointment. Thompson and Wife v Marray and Wife 211 
 
 10. Where real estate was conveyed in trust for a feme covert, and to such 
 
 person as she, by will or deed should appoint, her appointment by will is 
 valid without the concurrence of her husband. lb 214 
 
 11. When in a settlement by the husband for the separate maiutenance of his 
 wife, the trustee covenants to save the husband harmless against the wife's 
 debts, this is regarded such a valuable consideration as will protect the 
 property from the husband's debts, llargroves and Wife v. Meray and Wife. 220 
 
 12. Settlement on husband and wife, to their joint use during coverture, and 
 to the survivor; and power given to the trustee to sell and invest the 
 proceeds, subject to the same trusts: the trustee sold, and the husband 
 afterwards by deed, assigned his interest in the proceeds, to the trustee, 
 giving him authority to reinvest for the benefit of his wife, in such way as 
 she might direct; and the trustees accordingly reinvested to the sole and 
 separate use of the wife during life, and if she died without leaving issue, 
 then to the husband: — Held, that the husband had the right to change the 
 terms of the trust; and that the rights of creditors must be determined by 
 
 the interest he took in the property last acquired. Allstone v. The Bank.. 2L9 
 13 Before marriage J. S. executed a deed to the plaintitF as trustee, by which 
 he settled on his intended wife, a legacy due to her. The deed was 
 recorded in the mesne conveyance office, but not in that of Secretary of 
 State. Suit had been brought before marriage for the legacy, and after 
 marriage a decree obtained in the wife's favor and the funds received by 
 the solicitor employed to prosecute the suit, who, at the instance of the 
 husband, and without the concurrence of the trustee, accepted an order 
 in favor of a creditor of the husband. On a bill by the trustee to declare 
 the creditor's claim invalid, and to have the settlement enforced, the 
 Court decreed the trust fund recovered on the legacy, to be paid over 
 to the trustee. Ferrydear v. Jacobs 50o 
 
 14. The order was an assignment of the husband's interest, but he had none, 
 having previously parted with it by the settlement, which, though void. 
 for want of recording as to creditors who could reach the fund without the 
 
 aid of equity was good between the parties. lb..... 506 
 
 15. As the creditor cuuld only reach the wife's choses in action in equity, 
 the Court will, on his application to obtain the fund, make a settlement
 
 INDEX. 515 
 
 on the wife, or one being already made by the husband, enforce that. I'er- 
 rifclear v. Jaobs 507 
 
 16. The husband and solicitor could not by their act change the rights of the 
 parties ; and the acceptance of the order was a nullity, lb 508 
 
 17. The wife has the right to a settlement out of her separate property, 
 whether the application be by the husband or his assignees to obtain the 
 possession, and an assignee for valuable consideration is subject to the 
 same equity as the husband. lb 509 
 
 18. Creditors of the husband have no interest in the wife's expectancy not 
 reduced into possession, and if they trust him on the faith of it, it is at their 
 peril. lb 509 
 
 19. As the Court may compel the husband, ou his application for his wife's 
 estate to make a settlement, so he may of his own accord make one, and 
 that either of a part or the whole of her estate ; and his creditors should 
 not ohject. lb 610 
 
 20. In equity the husband may make an assignment of his wife's choses for her 
 separate use by parol ; and although a deed of settlement not recorded is 
 void as a marriage settlement, it would operate as an assignment of his 
 interest, and put the property out of the reach of his creditors, lb 610 
 
 2\. On a recovery for the wife's separate use, the marital rights cannot 
 
 attach, lb 610 
 
 22. Husband decreed to elect to hold his deceased wife's lands as tenant by the 
 curtesy, or to take under the statute of distributions. Gray v. Givaiis 513 
 
 23. The liusband having leased his wife's inheritance and died during the term, 
 the administrator, who also acted under a power of attorney from the wife, 
 received the rent from the tenant : Held, that the wife was entitled to the 
 rent accruing after the husband's death. Broicnand Wife v. Lindsarj, Adiii'r. 545 
 
 24. As regards lands owned by the wife in fee, the dominion of the husband 
 continues no longer than marriage; after that, she may defeat an unexpired 
 lease of the husband altogether by ousting the tenant, or claim the benefit 
 
 of it. lb 546 
 
 25. liusband being indebted, by deed expressed to be in consideration of love 
 and aifection, settled a plantation and slaves on his wife. He was then 
 negotiating a sale of a large real and personal estate acquired by his wife, 
 ■which was afterwards made ; and this deed was the inducement of the wife 
 to renounce her inheritance on the sale of her real estate : on a bill by the 
 creditors of the husband to set aside the settlement as voluntary and 
 fraudulent, and to subject the property to his debts: — Held, that parol 
 evidence was admissible to show that the true consideration of tlie deed 
 was the wife's renunciation of her inheritance, and that such consideration 
 was sufficient to support the deed against the creditors. Banks v. Brown 
 and others 562 
 
 26. A wife being entitled to one-half of her father's estate, proceedings in par- 
 tition were had, and a tract of land ordered to be sold by the Commissioner 
 on a credit of one and two years, with bond and mortgage to secure the 
 purchase-money. The husband purchased, and instead of giving bond and 
 mortgage, gave his receipt to the Commissioner for one-half the purchase- 
 money, his wife's share, and for the other half as guardian of the other 
 distributees, and received titles. After the first, but before the second 
 instalment became due, the husband died, and the land was sold by order 
 of this Court, as his property, on a bill to apportion his assets. On the 
 widow's presenting her claim for her share of the sale of the land, it was 
 held that she was entitled to payment thereof; and to the benefit of the 
 security of the mortgage which should have been given, or not being given, 
 that the Act of the Legislature in such cases gave one. Wardlaw v. Adm'rs 
 and heirs of Gray •• ••• "44 
 
 27. What constitutes a reduction into possession of the wife's choses in action, 
 
 by a husband administrator. — Per Ch. Johnston. Spaim v. Stewart; {note). 648 
 
 28. Payment by the Commissioner to the husband of his wife's distributive 
 share of an estate, without the order of the Court is wrongful ; and is not 
 such a reduction into possession by the husband, as that the marital rights 
 aitach. Wardlaw V. Adm'rs and Heirs of Gray 651 
 
 See Dower. Marriage Settlement. Witness, 1.
 
 516 II^DEX. 
 
 IMPROVEMENTS. 
 
 1. Tennnt for life may be paid for improvements -vrhen he finishes buildings 
 
 left unfinished. Ex jmrte Palmer, ••• -17 
 
 2. An executor will be allowed compensation for improvements made by him 
 
 on real estate, when they are such as the Court would have authorized; 
 and whether they are such depends on the fact whether they are beneficial 
 to all concerned. lb -17 
 
 INADEQUACY OF PRICI?. 
 See Fraudulent Conveyance, 3. Specific Performance, 2. 
 
 INCREASE. 
 
 Where the term " increase of slaves," is used, it means increase thereafter to be 
 produced. Under the bequest of a female slave and her increase, children of 
 the slave born before the execution of the will, do not pass. Siihles v. 
 
 Wliutley and others, « GU9 
 
 See Tenant for Life, 3. Will, 4. 
 
 INFANT. 
 
 1. If one undertake for minors his act will bind him. although it may not them, 
 
 and the contract will be binding on the other party, although voidable at 
 the option of the minors. Sarlirv. Gordon 125 
 
 2. What contracts of an infant are void, or voidable only. Lester, Adrn'r, v. 
 
 Fruzer, Adm'r 540 
 
 3. Whatever may be the rule as to executory contracts, it is clear that the 
 
 executed contract of an infant is voidable only, and only the infant or his 
 
 legal representatives can avoid it. Jb 511 
 
 See Guardian and W.-vrd. Marriage Settlement, 5, 6, 7, 8. Specific 
 Performance, 'J, 10. Parent and Child. 
 
 INJUNCTION. 
 
 1. PlaintiS" advanced money to a manufacturing company, and afterwards, in 
 order to secure himself, and according to the agreement at the time lie 
 advanced, took the outstanding titles to the lands and buildings of the 
 company to himself from persons having the legal title, it not being in the 
 company, and gave his bond to convey to the company on the payment 
 of the money. After the plaintiff had advanced the money, but before he 
 got titles defendants obtained judgment against the company, and the plain- 
 tiff afterwards recovered judgment for the money loaned, on which he 
 liad the lands and buildings of the company sold by the sheriff, and became 
 the purcliaser at a, sum less than that due to him, and took a deed from 
 the sheriff, paying no money but giving his bond to the sheriff to indemnify 
 him. Defeudauts brought suit at law against the sheriff claiming the money 
 on their senior execution, and obtained judgment, and was about to enforce 
 execution against him. On a bill by the plaintiff it was held lie was entitled 
 to relief, and defendants' judgment at law against the sheriff was perpetu- 
 ally enjoined. Gist y. Davis and others, 349 
 
 2. On an applic.ition for an injunction, the plaintiff maj' read affidavits filed 
 
 before the coming of the answer in support of the bill, or in contradiction 
 to the answer but no affidavits filed subsequently to the coming in of 
 
 the answer can be read. Kinslerv. Clarke, 620 
 
 See Waste, G. 
 
 INTEREST. 
 
 1. Where one acted as general agent in the management of another's estate, 
 with an understanding that he should receive all moneys, defray debts and 
 expenses, and if required before his death, pay over the balance, and if not
 
 INDEX. 517 
 
 V^^so required, continue to act till his deatli, -n-hen the unexpended balance 
 should be paid over: — Held, that the agent is not liable foi- interest until 
 after demand; nor would using the money make him so liable unless he 
 had actually made interest, or failed to pay the debts and expenses, to the 
 prejudice of his principal. Lever y. Lever, 1G2 
 
 2. An administrator who is chai-ged with interest on annual balances, shall 
 not be charged with interest on the interest he has made and returned, the 
 party charging must elect between the methods of stating the accounts. 
 
 Massey v. 3Iassey and others, 497 
 
 See Dower, G. Executors and Administrators, 4, G. Limitation of 
 Estates, 1. Parol Evidence, 2. Usury, 1. 
 
 ISSUE AT LAW. 
 When an issue will be ordered. Horry ^ Trapier v. Glover and others, 525 
 
 JUDGMENT. 
 
 1. The heir or devisee is not bound by a judgment against the executor or 
 
 administrator. Vernon ^- Co. \. Valk and M'ife, 2G1 
 
 2. A judgment against an administrator in Georgia, is not such evidence of 
 
 indebtedness as will enable one claiming as a creditor, to sustain a bill 
 here to set aside the gifts of the intestate as fraudulent. King v. Clarke,.. G14 
 See Attachment, 1. Estoppel, 2. Executors and Administrators, 1, 28. 
 Fraudulent Conveyance, 4. Injunction,!. Lien, 1,3. Recording, 2. 
 Subrogation, 2. Usury, 2. Vendor and Purchaser, 2. 
 
 JURISDICTION OF CHANCERY. 
 
 1. Equity will entertain jurisdiction of a bill by the administratrix to make 
 
 property conveyed in a voluntary deed of her intestate, liable to his debts, 
 and to prevent it from being removed from the State. Ilargroves and Wife 
 V. Mcray and Wife, 226 
 
 2. A party who has lost a note payable to bearer although past due, may 
 
 come into equity for relief. The ground of jurisdiction is not only that 
 be may give indemnity to defendant, but that he must swear to the loss. 
 Chewning v. Singleton, 373 
 
 3. Where one states that his slaves have come into possession of another who 
 
 refuses to deliver them, he states a suilicient ground of equity jurisdiction. 
 Horry and Trapier v. Glover and others, 52i 
 
 4. But if it should appear that he contracted lor slaves generally, with no view 
 
 to their qualities, or to any individuals, but as mere merchandize, the 
 
 remedy is at law. lb 525 
 
 2. A bill may be sustained here for the specific performance of a contract for 
 the sale of lands in Georgia ; and defendant was decreed to pay the 
 purchase-money on condition that plaintitl" execute and tender titles to 
 
 be approved by the Commissioner. Ep. Church of Macon \. Wiley, 585 
 
 See Partnership, 2. Tenant for Life, 1. 
 
 LAPSE OF TIME. 
 
 1. Lapse of twenty years will raise the pesumption of the payment of a legacy. 
 
 Barniodl v. Bannvell, Ex^or 283 
 
 2. A lapse of nineteen years after one of the legatees coming of age, will create 
 
 such presumption against him, where the legacy had been paid thirty-five 
 years before to his father, and the executor was dead and his estate 
 administered and disposed of. Ih 234 
 
 3. In no case, unless aided by other circumstances, will an ouster of a joint 
 
 tenant be presumed from lapse of time, under a period of twenty years. 
 Gray v. Givens 513 
 
 4. In analogy to the statute of limitations, the time which the party to be 
 
 affected was under a disability, is to be deducted from the lapse of time 
 which is to raise a presumption of title against him. lb 514 
 
 YoL. I.— 56
 
 518 INDEX. 
 
 LEGACY. 
 
 1. After the assent of the executor the title vests in the legatee, and the property 
 
 is not liable in his hands to executions subsequently obtained against the 
 executor. 3rMullin, AcVmr, \. Brown 459 
 
 2. A creditor of the testator has the unquestionable right to pursue a legacy 
 
 in the hands of a legatee, after assets in executor's hands have in any way 
 been exhausted. It might be different if he had stood by and seen the ex- 
 ecutor dissipating the assets without making any effort to save himself. lb. 462 
 
 3. Lands devised under a general residuary clause 'liable for debts before a 
 
 specific legacy. lb 462 
 
 4. The liability of a legatee for testator's debts extends only to the legacy, in 
 
 specie, he is not liable for hire. lb 466 
 
 See Annuity. Husband and Wife, 6. Limitations Stat, of, 7, 8. 
 Parent and Child, 1, 2. Will. 
 
 LIEN. 
 
 1. What estates are subject to legal liens. Alhlons v. The Bank 241 
 
 2. A contingent remainder is not subject to t'le lien of a judgment; but an 
 
 assignment of it for a valuable consideration will be supported in equity 
 and specifically enforced, as an agreement: therefore where the remainder 
 man against whom there were judgments before the contingency on which, 
 he took happened, assigned his interest, it was held, that the lien of the 
 judgments must be subject to the equity of the assignment. lb 242 
 
 3. Plaintifi' had a mortgage of two negroes from his debtor against whom there 
 
 were senior executions. Defendants also had a mortgage of real estate 
 junior to the plaintiffs, and in order to save the property mortgaged to them, 
 purchased the oldest execution. The negroes mortgaged to plaintiff, and 
 all the other property except that mortgaged to defendants were sold under 
 the executions, and they were all satisfied : the defendants afterwards 
 foreclosed their mortgage by sale under the order of the Court, the proceeds 
 remaining in Court. On a bill filed by the plaintiff, it was held that he was 
 entitled to relief out of the proceeds of the property mortgaged to 
 defendants, to the extent of the sales of the negroes mortgaged to him. I 
 Gist v. Presdey 324 
 
 4. The rule in equity is, that an agi'eement in writing to convey will bind 
 
 the state and prevail against subsequent liens; so, too, a parol contract 
 ito convey which has been performed and set up by the Court, has equal 
 validity with a written covenant ; and the party entitled to specific perform- 
 ance may hold the land against subsequent judgment creditors of the 
 vendor. Massey v. 31cllwaiti and others 428 
 
 5. Defendant assisted a debtor to remove his property out of the State, with 
 
 the view to defeat liens existing here against it, and to obtain priority 
 for himself in another State: Held, that this was such a fraud as will 
 deprive him of his priority in the foreign jurisdiction ; and he was ordered 
 to account here, for the funds received there. Pickett v. Pickett 471 
 
 6. The Act of 1791 prescribing proceedings in partition gives a lien on the land 
 
 for the purchase money, whether the sale be for cash or on credit. And 
 the fact that the guardian and Commissioner interchanged receipts, will not 
 in equity be regarded as a payment so as to extinguish this security. 3Ies- 
 
 servey and others v. Barrelli 575 
 
 See Agent. Attachment, 2. Contribution, 3. Debtor and Cbeditor, 8. 
 Guardian and Ward, 7, 8, 9. 
 
 LIMITATION OF ESTATES. 
 
 1. Testator directed his estate to be sold and the interest of the fund arising 
 thence to be paid to his son S. annually, and the principal to be equally 
 divided amongst the lawful issue of S. as they came of age or married: 
 "and in default of such heirs to go to his next of kin, to be equally divided 
 amongst them at the death of S.; S. died without issue. — Held, 1. That
 
 INDEX. 519 
 
 the limitation over to the next of kin, was not too remote: 2. That S. was 
 entitled to the interest on the whole sum annually during his life; and 
 his administrator to the interest which accrued in the year he died, up to 
 the time of his death. Dauidson v. Riiff. 141 
 
 2. A remainder cannot be limited after a fee conditional. Deas and Wi/c v. 
 
 Horn/ and others ." 21G 
 
 3. Testator by his will devised an estate to his son, E. L., for life, and at his 
 
 death to the first son of E. L., and the heirs of his body lawfully issuing, 
 and in default of such issue, to the second, and every other son of E. L. 
 successively and in the order of birth, and to the several heirs of their 
 bodies in like manner; and in default of sons, with like limitations to the 
 first, second and every daughter of E. L. and successively in the order of 
 their birth, and the several heirs of their bodies, &c. : and died in 17^."), 
 leaving one son, E. L., and a daughter. His son, E. L., the tenant for life 
 had a son and three daughters; the son of E. L. died in IT'.t?, without 
 issue, and his father in 1831: — IMd, that the first son of E L. took a 
 fee conditional; that all the remainders after the devise to him, were void; 
 and that on his death, in 1797, the fee reverted to the right heirs of the 
 testator. Jb 247 
 
 4. Although the testator died before the Act of 1791, abolishing the right of 
 
 primogeniture, the right must go to those who were heirs at the time the 
 fee conditional determined. lb 248 
 
 5. Testator by bis will devised his plantation to his son Charles in fee, but if he 
 
 shovild die under age and without issue, then to be kept for the use and 
 maintenance of his wife and unmarried daughters, and on marriage to be 
 sold and equally divided between his wife and surviving daughters. Charles 
 died under age, and without issue leaving four sisters, the mother having 
 died before ; one sister died shortly after unmarried, two afterwards married 
 and died leaving issue, and the last died lately, unmarried : Held, that the 
 devise to Charles was a fee simple, defeasible on his death under age and 
 without issue; that the limitation over to the wife and daughters was 
 contingent, and must fail, because at the event on which it was limited 
 over there was none answering the description to take; and that, on the 
 death of Charles, the fee reverted to testator's right heirs, and those 
 answering the description of heirs at that time take. Wdson and Wife v. 
 Freer and others d52 
 
 6. S. B. and D. B. delivered two female slaves to a trustee for the use of C. P., 
 
 and if C. P. died without issue, "then the said negroes to return to tlic 
 sons of S. & B. and D. B. and their heirs forever." C. P. died witliout 
 issue At the time of the gift, S. B. and D. B. (the donors) had each one 
 son living, and afterwards S. B. had other sons who died, and the son of 
 D. B. died before the death of C P at whose death the only living son of 
 either of the donors was the son of S. P. who was living at the time of the 
 gift. This son recovered the negroes and their increase from the represen- 
 tatives of C. P. and took them into possession : On a bill by the 
 administrator of the son of D. B. claiming one-half of the slaves under 
 the gift, it was held, that the limitation was to the sons of S. B. and D. 
 B. living at the time of the gift, jointly, as if it had been to them by name ; 
 and therefore the plaintiff was entitled to a recovery. M'MceMn v. Brummett. 68S 
 
 7. Where property is given by will, to be distributed among a class of persons 
 
 at some future time, or on some future contingency, all are let in who come 
 into existence before the time or happening of the event, and none can take 
 but those then answering the description ; but such principle does not apply 
 to a deed or gift inter vivos. A will speaks at the time of the testator's death, 
 and those who answer the descriptions of legatees at the time will take unless 
 a contrary intention appears but a deed or gift speaks at the tijnewhcn 
 made, and the donee under it must be such as answers the description at 
 that time. A future contingent interest may be given to a person not in 
 esse, but the intention must be plainly expressed ; and if there he a person 
 to answer the description at the time, it will never be applied to another 
 afterwards coming into existence who may come within the description. 
 lb 6S9
 
 520 INDEX. 
 
 8. A contingent remainder is transmissible to the personal representative, 
 when the existence of the remainder-man himself at the time of the event 
 does not constitute the contingency. M'Meekin v Brummett 642 
 
 See Appointment. Fees Conditional. Will. 
 
 LIMITATIONS, STATUTE OF. 
 
 1. The plaintiff had paid one hundred dollars to testator in part price of a 
 
 negro. After testator's death, six tut of eight of the residuary legatees 
 gave their bond to the administrator with the will annexed, relinquishing 
 their interest in the one hundred dollars, and authorizing the payment of 
 their shares therein to the plaintiff: Held, that this was an assignment 
 of their interest in that fund to the plaintiff: that it was an equitable and 
 not a legal demand, and that the statute of limitations did not apply to it. 
 Sims V. Sims "- 
 
 2. If thei-e be mutual running accounts between the parties and any of the 
 
 items have accrued within the time of the statute of limitations, this 
 amounts to an acknowledgment of the previous account and a promise to 
 pay. Slimier, Adm'r, w. Morse, •J-' 
 
 3. The plaintiff, (an administrator,) claimed demands in hiS" bill against the 
 
 defendants extending down to a period within the statute: and set forth 
 that he as the agent of his intestate had frequently called on the defendants 
 and requested them to come to a settlement of their accounts, and pay what 
 upon balancing the accounts should appear to be due: — Beld, that this state- 
 ment of the bill is such an admission of the previous accounts of the 
 defendants as will prevent the operation of the statute of limitations; and 
 being made by his agent is obligatory on the estate of the intestate. 
 
 lb.. :. 93 
 
 4. Before answer filed, it was agreed between the parties that neither should 
 
 plead the statute of limitations to the demands of the other, and the de- 
 fendants did not in their answer, or on the reference, urge that plea; the 
 plaintiff will not afterwards be permitted to plead the statute. lb 93 
 
 5. Generally an executor or administrator may or may not plead the statute 
 
 of limitations: the only exception is when the demand is in whole or in 
 part due to himself, in which case the legatees or distributees have been 
 permitted to plead it when he had not: but when the administrator is 
 the sole distributee, his agreement not to plead the statute has every pos- 
 sible legal and equitable sanction. lb 94 
 
 6. When a trustee does an act importing a tei'mination of the trust, as a final 
 
 settlement, the statute of limitations will run from that time but a payment 
 to the father of the cestui que trusts who had no authority to receive, is not 
 to be regarded as such a termination of the trust as will allow the statute 
 to run from that time. Barnwell v. Barnwell, Ex^or 232 
 
 7. The statute of limitations will not run so as to protect a legatee against his 
 
 liability for testator's debts, until after the remedy has been exhausted 
 against the executor. — No cause of action accrued against him until then. 
 M'Mullin, Adm'r, v. Brown 4GI 
 
 8. If a creditor is guilty of neglect in prosecuting his demand against the 
 
 executor, the legatee will be protected by the statute of limitations. {Ob. Dec.) 
 
 lb 467 
 
 9. On a bill by an administrator against a distributee and her guardian to 
 
 have money refunded which was paid by mistake to the guardian more than 
 four years before the filing of the bill, but paid over by him to the ward 
 within that time, it was held, that the ward might protect herself by the 
 statute of limitations, although not pleaded by the guardian, especially as 
 the guardian had paid over all the funds received before notice of the 
 mistake which discharged him from liability. Massey v. Massey and others. 496 
 
 LOST NOTES. 
 See Jurisdiction of Chancery, 2.
 
 INDEX. 521 
 
 MARRIAGE SETTLEMENT. 
 
 1. Contracts in consideration of marriage, are greatly favored in Chancery, 
 
 and as between the parties themselves, and others falling within the express 
 objects of the contract, they will be enforced according to the obvious intent, 
 however informally or irregularly they may have been executed ; and that, 
 too, although they may have been rendered inoperative at law by the inter- 
 marriage of the parties. Ex' or of Allen \. Rinnph and others 3 
 
 2. In contemplation of marriage, defendant executed a deed, in whicli, after 
 
 reciting the intended marriage, he conveyed, directly and without the inter- 
 vention of a trustee, to bis intended wife, "all the estate which she was 
 entitled to of her first husb.md," consisting of slaves and other personaltv, 
 to her, "her heirs, administrators and assigns." The marriage was after- 
 wards solemnized, the defendant and his wife went into possession of the 
 property. After the death of the wife without issue of that marriarre, on a 
 bill filed by a son of the wife's first marriage, it was held that, in ICquitv, 
 the deed will be regarded as a marriage settlement in trust for the wife and 
 her heirs at law ; that the marital rights of the husband would not uttach, 
 and consequently that he took only his distributive share as heir at law 
 lb 
 
 3. The Act of 1792, 1 Faust, 200, requires all marriage contracts, &c., &c., 
 
 to particularize the property intended to be settled, or to have a schedule 
 of the same annexed: a description of the property in a marriage settle- 
 ment as that to which the wife "is entitled under the will of her husband 
 J. A. or to which she may be entitled independent of the will," is not a 
 compliance with the act, and the settlement is void as to the creditors of 
 the husband subsequent to the marriage. lb 5 
 
 4. It is indispensaibly necessary by the Act of 1792, that a marriage contract 
 
 should specify the property intended to be settled, or have a schedule 
 annexed containing a description thereof, which scheilule must be signed 
 and subscribed by the witnesses to the contract: and therefore, when a 
 marriage contract was signed with a schedule annexed, which was neither 
 signed nor witnessed, and they were recorded within the legal period; and 
 in conformity to the contract, a settlement was afterwards entered into, 
 which was not recorded until after the time prescribed by law, it was held, 
 that the contract and schedule were not a compliance with the act, and the 
 settlement not being recorded in due time, the property was liable to the 
 debts of the husband subsequent to marriage. McCartney and Gordon v. 
 Fogwn and Wife 181 
 
 5. Where a female infant before marriage entered into a settlement by which 
 
 she conveyed her real estate to the uses of the marriage and the issue there- 
 of, and died during infancy, leaving a son who lived eleven years after 
 attaining full age, without calling the settlement in question, and died 
 leaving issue ; on a bill by the creditors of the son to charge the real estate 
 derived from the mother with the payment of his debts, on the ground, that 
 the settlement was void, being made by the mother while an infant : — lldd, 
 that at most the settlement could only be regarded as voidable, and no 
 election having been made to avoid it, the creditors had no right to inter- 
 fere, and the bill was dismissed. Lester, Adm'x, v. Frazcr, Adm'r, 537 
 
 6. The question whether a female infant is bound by marriage articles, by 
 
 which her own real estate is settled to the uses of the marriage discussed, 
 and the English cases considered. lb 538 
 
 7. In England while it has been held that an infant wife who had accepted a 
 
 jointure was barred of dower under the stat. Hen. 8, it seems to be settled 
 she is not bound by a settlement before marriage disposing of her own real 
 estate. lb 538 
 
 8 Regarding the point settled in England, it becomes a question, how far we 
 are bound by it, considering the difference in our circumstances, habits and 
 institutions. lb 539 
 
 9. The registry acts requiring marriage settlements to be recorded, &c., apply 
 only to settlements founded on the consideration of marriage and entered 
 into before marriage, or afterwards in pursuance of articles before, and
 
 522 INDEX. 
 
 to voluntary conveyances by the husband to the wife. A settlement by 
 the husband after marriage in consideration of his wife's renunciation of 
 inheritance in her real estate, need not be recorded as a marriage settle- 
 ment. Banks ■^. Brown and others, "65 
 
 10. And the same reasons apply to and will sustain a deed of a house and lot 
 purchased by funds derived from the estate of the wife's father, no provis- 
 ion having previously been made for her ; and to another deed by the 
 husband settling other slaves on her, expressed to be in consideration of 
 her renunciation of inheritance. lb 566 
 
 11. The husband, may not make an unreasonable settlement on his wife to 
 defraud his creditors — a settlement of less than one-half the value of the 
 fortune he acquired by his wife, is not an unreasonable provision. lb....... 566 
 
 See Husband and Wife, 10, 11, VI, 13, 17, 25. 
 
 MISTAKE. 
 
 Guardian not liable for money paid to him by mistake, after he had paid it over 
 
 to his ward without notice. Massey v. Mas&ey and others 496 
 
 See Agent. Bond. 
 
 MORTGAGE. 
 
 1. An endorsement on a ship's register at the time of sale, that "the vessel 
 
 should not be sold until the notes given for the purchase money were 
 paid," constitutes an equitable mortgage, especially when the ship's 
 register was left with the vendor. ^Yclsh■sr. Usher and others, 170 
 
 2. AVhere mortgaged negroes were, by an agreement endorsed on the mortgagee, 
 
 left in possession of the mortgagee, and to continue there in lieu of interest 
 until the debt is paid, no length of time will bar the right of redemption. 
 Wurtz v. Thyms 178 
 
 3. A mortgagee of personalty does not fall within the principle which prevents 
 
 a trustee to sell from buj'ing at his own sale ; but he holds such a trust 
 character as to throw the burden on him of showing the fairness of his pur- 
 chase. Black V. Hair and Black 623 
 
 See DowEii, 5. Fraudulent Conveyance, 7, 8. Guardian and Ward, 7, 
 8, 0. Lien, 2. Recording, 2. Usury, 1. 
 
 OR. 
 
 Construed "and." Edwards \. Barksdale, 195 
 
 1. The Act of 1824, authorizing Ordinaries to make partition of real estate not 
 
 exceeding in value one thousand dollars, applies only where the entire 
 estate, in how many districts soever situated, does not exceed that amount. 
 Kidgel v. Bethea -366 
 
 2. If the Ordinary should be deceived as to the value, the title of a bona fide pur- 
 
 chaser will not be aS'ected; but tiie facts should appear in his proceedings, 
 and if it thus appears that he did not inquire as to the value of the entire 
 estate, or that it exceeded one thousand dollars, his proceedings are void. 
 lb 366 
 
 See Executors and Administrators, 26. 
 
 OUSTER. 
 See Lapse of Time, 3. 
 
 NEXT OF KIN. 
 Under the statute of distributions, first cousins of the whole and half blood are 
 next of kin in equal degree, and equally entitled to the estate of the 
 intestate. Edwards y. Barksdale 417 
 
 PARENT AND CHILD. 
 1. A father, as such, has no right to receive a legacy to his child: and therefore
 
 INDEX. 523 
 
 where an executor p.aid a legacy to the father of an infjint legatee, and 
 afterwai-ds, on the demand of the legatee's guardian, his co-executor paid it 
 to the guardian, the last payment was held proper and that the executor who 
 made the first, was liable to the estate for his improper payment. Admin- 
 istrators of Johnson v. Executors of Johnson 288 
 
 2. Nor will the fact that the father of the legatee was a co-executor be an 
 
 excuse ; for although executors are primarily regarded as only separately 
 liable, yet, if they concur in any act touching the estate, they are jointly 
 liable. lb 288 
 
 3. One having a lawful wife and children, separated from them, and lived in a 
 
 state of adultery with a woman by whom he had several illegitimate cliild- 
 ren, and with the proceeds of their labor purchased lands, and had the con- 
 veyances executed to the natural children : Held, that the father might 
 permit his natural children to receive the profits of their labor and might 
 invest those profits for them ; and that such investment was no violation 
 of the Act of ]79o, prohibiting gifts and conveyances, exceeding one-fourth 
 of his estate, by a man having a wife or children, to a woman with 
 whom he lives in adultery, or his illegitimate children. Kinj and others v. 
 Johnson and others, 626 
 
 PAROL EVIDENCE. 
 
 1. Parol evidence is inadmissible to explain a will except in a case of latent 
 
 ambiguity. Pattersons. Leith, Ex'or 16 
 
 2. Parol evidence admissible to lebut an equity against executors arising out 
 
 of their obligations to vest funds so as to make interest. (See S. C. 1 
 
 Hill Ch. 122'.) Chesnut and Wife\. Strong, Ex'or 149 
 
 See Deed, 2. Guardian and Ward, 4. 
 
 PARTIES. 
 
 1. Funds being in possession of the Court (or subject to its order), the Court 
 
 ordered notice to be published for creditors to come in and establish their 
 claims in opposition to one of the defendants, who claimed it as a principal 
 creditor : — Held, that all the creditors who came in under the order were 
 rightly in Court, properly parties to the case, and bound by the proceed- 
 ings: and an oi-der of the Chancellor requiring them to file a cross bill, on 
 order to establish their demands, reversed. Chestnut v. Champion and 
 others, 84 
 
 2. In a contest between creditors for a trust fund in the possession of the 
 
 Court, the executrix of the deceased debtor is not a necessary party. lb. 87 
 
 3. Qu? Can a bill against a devisee to charge the devised estate, be sus- 
 
 tained without making the heir-at-law a party? Vermon and Co. v. Valk 
 
 and Wife, 262 
 
 See Assets. Husband and Wife, 7. 
 
 PARTITION. 
 
 See Commissioner's Report. Guardian and Ward, 7, 9. Husband and 
 Wife, 26, 28. Lien, 5. Ordinary, 1, 2. Waste, 1. 
 
 PARTNERSHIP. 
 
 1. It is a rule as well of equity as law, that a party claiming under a contract 
 
 with mutual stipulations, must show either that he has performed his 
 part, or some legal excuse for not performing: and therefore, held, that a 
 partner who contributed his proportion according to the articles, for only 
 three years of the ten or which the partnership was to continue, the other 
 partner conducting the business afterwards on his own means,' was not 
 entitled to an account for the profits, except for the three years. Kinloch, 
 Ex'or, V. Hamlin 1" 
 
 2, Partners may sue each other at law for the breach of any distinct engage-
 
 524 INDEX. 
 
 / 
 ment in the partnership agreement; and generally, adequate relief may 
 in such cases he thus obtained : and where this can be done, equity will 
 not entertain a bill sole'y for the breach of such an engagement. Kinloch, 
 
 Ex' or, T. Ilamlin 20 
 
 3. The question considered whether owning a ship employed in trade, by 
 several in distinct shares, constitutes a partnership. Ch. De Saussure's 
 opinion, that this is a partnership, and carries with it all its legal inci- 
 dents. Seabrook y. Rose 555 
 
 See Commissions, 4. 
 
 PAYMENT. 
 
 See Bond Debt, 2. Commissioner's Report. Husband and Wife, 5, 6, 28. 
 Lapse of Time, 1, 2. Lien, 5. Parent and Child, 1, 2. 
 
 PLANTATION. 
 
 What passes under a devise of. Nash v. Savage ^ Nash, Ex'ors 50 
 
 See Will, 3, 8. 
 
 PLEADING. 
 
 1. If it appear on the face of a bill, that it was prematurely filed, 'and advan- 
 
 tage be taken by demurrer, it will be fata!; but if there be no demurrer, 
 and the case be not brought to a hearing till after the time fixed for the 
 performance of the contract, the Court will not then dismiss the bill, but 
 give leave to amend on terms. A bill may properly be filed to prevent the 
 sale of slaves before the time fi.^ed in the contract of sale for their delivery; 
 and then it is proper, to prevent multiplicity of suits, that all matters in 
 controversy be brought forward. Saner arid Wife, and others, v. Gordon, 
 Adm'r 137 
 
 2. That a former decree should be a bar to another bill, it must appear that 
 
 the rights of the parties were considered and adjudged ; therefore, where 
 the plaintiff in the first bill did not show any interest or liability which 
 required the aid or interference of the Court, and on that ground his bill 
 Avas dismissed, but in his new bill set out his liability on a bond of indem- 
 nity connecting him in interest with the parties litigant: Held, that the 
 former decree was not a bar to the new bill. Gist v. Davis and others 342 
 
 3. Irregularities in form, cannot be taken advantage of after answering to the 
 
 merits of the bill. Messervey and others \. Barelli, 583 
 
 See Decree, 1, 2, 3. 
 
 POWER. 
 
 Testator by his will, after a specific bequest gives the residue to his wife for 
 life, and at her death " to the nieces of my wife, in such manner and at 
 such time as my said wife shall think proper." — Held, that the power of 
 disposing was not given to the wife ; that she had no right to divest thc 
 legacies so given, nor to disturb the equality of the portions which the 
 will vested in the nieces, but merely to fix on the time and manner of enjoy- 
 ment ; and that a niece of the husband not being within the description of 
 those named in the will, could not take by the appointment of the wife. 
 Seibcls v. Whatley and others, 608 
 
 PRACTICE. 
 
 1. Order of the Chancellor quashing the reports of a former Commissioner on 
 claims of creditors, because it did not appear that before making them up 
 he had given the parties notice, or an opportunity afterwards to contest 
 them reversed. In the absence of proof, it will be presumed that the 
 Commissioner had done his duty and given due notice; but under the 
 circumstances, the reports referred back to the present Commissioner, 
 with instructions to regard them as jjrima facie evidence in favor of the
 
 INDEX. 525 
 
 claims reported, but with leave to falsify tbcm by proof. Chestnut v. 
 Champion and others, 85 
 
 2. Decretal orders, when they may be suspended. Spann ^- Jennings v. Spann, Ib'i 
 
 3. Although a Chancellor has no authority to set aside a previous order of 
 
 Court, final in its nature, he may, either in the Court or at chambers, 
 suspend its execution, on the ground of subsequent matter that would 
 i-ender its execution oppressive or iniquitous. lb 156 
 
 4. A bill by trustees to marshal assets and calling in creditors, after decree 
 
 made, directing money to be paid in and creditor's claims established, will 
 not be dismissed at the instance of one of the plaintiffs, his co-plaintiff 
 
 and the creditors objecting. Muldrow ^ Bruce v. Dabose and others, 377 
 
 See Decree, 1. Injunction, 2. Issue. Parties, 1. Rehearing. 
 
 PREFERENCE OF CREDITORS. 
 See Debtor and Creditor. Fraudulent Conveyance, 10. Subrogation, 1. 
 
 PREROGATIVE. 
 See Debtor and Creditor, 1. 
 
 RECEIPT. 
 
 A receipt by a legatee to the administrator with the will annexed for his divi- 
 dend of the estate, applies only to his share under the will, and does not 
 preclude him from recovering a fund which the other legatees assigned to 
 
 him. Sims y. Sims, Adm'r 62 
 
 » See Husband and Wife, 26. Lien, 6. 
 
 RECORDING. 
 
 1. Under the Act of 1698, (P. L. 3 ) a deed recorded, although not within sis 
 
 months, (as required by the 'Act of 1785,) acquires preference over a 
 prior unrecorded mortgage. Barmcell and others y. Porleus and others 220 
 
 2. A junior judgment creditor is not, under the Act of 1785, entitled to 
 
 preference over an unrecorded mortgage. lb 221 
 
 See Emancipation of Slaves, 3. Husband and Wife, 13, 14, 20. Marriage 
 Settlement, 4, 9, 10. 
 
 RE-HEARING (PETITION FOR), AND BILLS OF REVIEW. 
 
 1. On what grounds motions for re-hearings or bills of review, will be granted. 
 
 The cases on the subject reviewed. Hinson, AdrnW, v. Pickett 353 
 
 2. A rehearing will not be granted on the ground of newly procured evidence 
 
 which would have materially varied the case on trial, it must appear that 
 the evidence was discovered since the decree, and of which the party could 
 not have had the benefit in the first instance. Motion for re-hearing 
 refused, where it appeared that the party knew of the evidence before trial, 
 and could by proper diligence have procured it. lb 357 
 
 3. Rule laid down that a rehearing in Chancery will not be granted, on the 
 
 ground of after-discovered oral evidence, lb 359 
 
 REIMBURSEMENT. 
 
 In decreeing partition of slaves recovered by defendant in a former suit, from a 
 third person, the defendant was allowed reimbursement for the expenses 
 incurred, in proportion to the plaintiff's interest. iVMeekin v. Brummet... 643 
 
 RELEASE. 
 
 A release given by a- weak man, to his general agent on final settlement, under 
 the circumstances sustained in bar to a bill for an account. Wurtz v. 
 Thynes 174
 
 526 INDEX. 
 
 RENTS AND PROFITS. 
 See Decree, 2. Guardian and Ward, 6. Hire, 1, 2. Husband and Wife, 23, 24. 
 
 SHERIFF'S SALE. 
 
 1. Purchaser at sheriff's sale Bot allowed the protection of an execution under 
 
 which the land was not sold. Massey v. M'llwain 425 
 
 2. Where land was sold under execution as the property of one who had the 
 
 legal title, but under a parol contract which had been performed was bound 
 to convey to the plaintiff, the purchaser is invested with all the rights of the 
 judgment creditors at whose instance the land was sold, and want of notice 
 to them of the plaintiff's equity may protect him; but it seems that the pos- 
 session of the land by the plaintiff would be sufficient notice to creditors. 
 lb 427 
 
 3. Shei'iff's sale to defendant set aside, where the defendant, with a knowledge 
 
 that the sheriff had agreed to postpone the sale, urged him to sell when the 
 crowd had dispersed, and then purchased himself at a great sacrifice. 
 
 Pickett V Pickett ., 471 
 
 See Injunction, 1. 
 
 SLAVES. 
 
 1. The common law doctrine of villenage, does not apply to the condition of 
 
 slavery here. Fabler. Brown, Ex' or 390 
 
 2. The status of our slaves ascertained by reference to what was anciently held 
 
 to be the condition and disabilities of alien enemies and Pagans, lb 392 
 
 3. The anomalies in the condition of our slaves referable to our own legislation. 
 
 lb ; 395 
 
 4. A slave being a personal chattel, is incapable of holding property in his 
 
 own right, and the possession and title must be referred to his master, lb. 396 
 
 5. Where a testator directed his executor out of the funds of his estate to 
 
 purchase a slave, (his son,) — Held to be an attempt to evade the law against 
 emancipation, and if purchased, the slave would become part of the estate. 
 
 lb 399 
 
 G. Applying the doctrine in respect to alien enemies to the condition of our 
 slaves, it was held : that as an alien enemy may take lands but cannot hold ; 
 and as a chose in action given to him is not void, although he cannot 
 maintain an action on it: so a slave may take, but cannot hold land, and 
 his master could only hold until oflBce found for the State ; and so of a 
 legacy given to a slave it is not void, but it cannot be recovered from the 
 executor by either slave or master, but may escheat to the State in the 
 hands of the executor. Therefore where testator by his will gave his estate 
 to his children who were slaves, a bill filed by the next of kin against the 
 
 executor was dismissed, lb 400 
 
 See Emancipation of Slaves. Evidence, 7, 8. Increase. Jurisdiction 
 OF Chancery, 8, 4. Specific Performance, 1, 4, 6, 7, 8. Tenant for, 
 Life, 1, 2, 6, 7. 
 
 SPECIFIC PERFORMANCE. 
 
 1. Specific performance of an agreement for the sale of slaves decreed. Barter 
 
 and Wife and others \. Gordon, Adm'r 121 
 
 2. Inadequacy of price, unaccompanied with circumstances of fraud, not 
 
 sufficient to prevent enforcement of a contract, lb ^ 126 
 
 3. Time, when not of the essence of the contract, no excuse for nonperformance 
 
 unless it amount to an abandonment, lb 126 
 
 4. It is a general rule that specific performance will not be decreed of contracts 
 
 for personal chattels. Exceptions where property is of a peculiar 
 character: Domestic servants, or those brought up in a family, come within 
 the reasons of the exceptions. lb 126 
 
 5. General principles on which specific performance of contracts is decreed, and 
 
 the cases on the subject considered, lb 133
 
 INDEX. 527 
 
 G. The general principle is that any fair and reasonable contract will be enforced 
 specifically, unless it appears that full justice may be done by a compen- 
 sation in damages. In .«ome cases of contracts for slaves, damages would 
 not be a sufficient compensation. Sarler and tcifc anil others v. Gordon, 
 Adm'r 135 
 
 7. According to the principle of all the cases, a bill may be maintained for 
 
 slaves brought up in a family: and it may be laid down as a general rule 
 that a bill will lie for the specifiic delivery of slaves, as for the specitic 
 performance of a contract for the sale of laud. lb 136 
 
 8. There may be exceptions to the rule — as if the purchaser contracted for the 
 
 slaves as merchandise, intending to sell again; in such case, justice would 
 
 be done by damages. Cut this is not generally so, or to be presumed. 76. 137 
 
 9. Any one offering to perform a contract on behalf of infants is their agent, 
 
 and his ofi'er will be sufficient to compel performance by the other party. 
 
 Il> 138 
 
 10. In a contract with the father for the benefit of his infant children, there is 
 not such want of mutuality as will exonerate the other party from per- 
 formance, lb , 139 
 
 11. Specific performance of contracts for leases has, in some cases, been refused 
 on the ground of the insolvency of the tenant; different on a contract to 
 purchase — for there the Court will not decree title to be made until the 
 money is paid. lb 140 
 
 12. The contract sought to be enforced being certain, it will not be affected 
 by any uncertainty in another separate contract for a different matter, 
 contained in the same instrument. lb 140 
 
 13. One who has paid the purchase-money, taken possession and made improve- 
 ments under a parol contract for the purchase of land, entitled to specific 
 
 . performance. ' JIas.sei/ w. M'llwain, 426 
 
 See JuiusDicTiON of Ciianceky, 5. Sheriff Sale, 2. 
 
 STATUTE. 
 
 When a statute authorizes a proceedingnot before allowed bylaw, and prescribes 
 the mode in which it shall be done, the mode pointed out must be strictly 
 pursued, or the proceeding will be void : but when a proceeding is permitted 
 by the general law, and a statute directs a particular form in which it shall 
 thereafter be conducted, it will depend on the terms of the statute whether 
 it is merely directory subjecting the parties to some disability if it be not 
 complied with, or shall render the proceeding void. Monk, Adm'r, v. Jenk- 
 ins, Ex'triz 1- 
 
 SUBROGATION. 
 
 1. A surety to a custom house bond having paid it, is not entitled, under the 
 
 Acts of Congress of '97 and '99, to be subrogated to the rights of the United 
 States as against his co-surety, so as to give his demand for contribution a 
 preference over other creditors; nor on the general principles of equity 
 can he claim to stand in the place of the United States as against the co- 
 surety. Bank v. Adgcr, :....... 1.66 
 
 2. Joint judgment against principal and sureties paid by one of the sureties, 
 
 will not be set up for contribution against the co-surety. lb 267 
 
 SURETY. 
 
 ^ See Guardian and Ward, 5. Subrog.^tion. 
 
 SURVIVORSHIP. 
 The right of survivorship in joint tenancy of both personal and real estate, 
 
 taken away by the Act of 1791. JI'Meekiny. Brummel ' 643 
 
 TENANT BY THE CURTESY. 
 See Husband and Wife, 22. Improvements, 1.
 
 528 INDEX. 
 
 TENANT FOR LIFE. 
 
 1. The remaimler-maa may sustain a bill against the representatives of the 
 
 tenant for life for the specific delivery of slaves. Horry and Trapier v. 
 Glover and Others 516 
 
 2. The tenant for life of slaves as a trustee for the~ remainder-man is bound to 
 
 account, and the burthen of proof to show the increase or diminution is 
 thrown on him; and in default of accounting, he shall be charged with the 
 value of such number as the original stock may reasonably be supposed to 
 have increased ; subject, however, to evidence of peculiar circumstances, 
 accident'or mortality. lb 520 
 
 3. A specific bequest of property strictly consumable in the use, such as corn, 
 
 wine, &c., gives the absolute property, but of a flock or herd which is 
 capable of increase, the tenant for life taking the increase is bound to 
 keep up the number of the original stock. lb 521 
 
 4. The estate of tenant for life having been divided before administration, refer- 
 
 ence ordered to ascertain if sufficient property came into the hands of her 
 son, so as to make his estate chargeable for the stock, &c. Ih 521 
 
 5. Limitations of the trusts of personalty are the creatures of equity, and it is 
 
 by regarding the tenant for life as a trustee for the remainder-man that 
 equity takes jurisdiction to compel the execution of the trust to the remain- 
 der-man. And not only the personal representative of the tenant for life, 
 but every volunteer and purchaser with notice, are bound by the trust, lb. 523 
 
 6. According to the general rule laid down in Sarter vs. GordDn, that a bill will 
 
 lie for specific delivery of slaves, the remainder-man may sustain a bill 
 against the representatives of a tenant for life, or volunteers under her, to 
 compel delivery of slaves bequeathed to hira. Ih 523 
 
 7. Tlie general rule is, that if a trustee wrongfully refuses to deliver on demand, 
 
 he is liable if the property afterwards perishes : and therefore, defendant, 
 claiming as a volunteer under-tenant for life, was held liable to remainder- 
 man for slaves, who died since the filing of the bill to compel delivery. lb. 523 
 See AVaste, 4, 5. 
 
 TRUST. 
 
 What acts will estop a party from setting up a resulting trust. Thompson and 
 
 Wife V. Murray and Wife 210 
 
 See Will, 10. 
 
 TRUSTEE. 
 
 See Account. Executors and Administrators, 15, IG, 17, 18, 19, 20, 22. Hus- 
 band AND Wife, 8. Limitations, Stat, of, G. Mortgage, 3. Tenant fob 
 Life, 2, 5, 7. Will, 1 0. 
 
 USERY. 
 
 1. An agreement by which negroes mortgaged were left in possession of the 
 
 mortgagee in lieu of interest, is not usurious, unless the value of the hire 
 so far exceed the interest as to manifest a corrupt intention. Wurlz v. 
 Thynes, 179 
 
 2. On a bill filed by one judgment creditor against another to set aside a sheriff's 
 
 sale of debtor's property as fraudulent, and to recover funds which defend- 
 ant had fraudulently obtained, it was held by a majority of the Court, that 
 the^ defendant could not avail himself of usury in the original cause of 
 action on which the plaintiff's judgment was founded. Ch. Harper, and 
 Js. Gantt and O'Neall, dissenting. Picketty. Pickett 473 
 
 VENDOR AND PURCHASER. 
 
 1. One purchasing land, to which another has an equitable title, with notice 
 of the equity, takes subject to the equity, and is bound to convey in like 
 manner as the person from whom he purchased. Massey v. M'llwain 426
 
 INDEX. 529 
 
 2. In equity, an agreement in writing to convey, will bind the estate and 
 prevail against subsequent liens on the vendor's property ; and a parol 
 contract to convey which has been performed by the purchaser, lias e(]ual 
 validity and will prevail against subsequent judgments against the vendor. 
 Massey v. M'llwain 428 
 
 See Agent. Mortgage, 1,3. Sheriff's Sale, 2, 3. 
 
 WAIVER. 
 
 Where parties claiming under the limitations of a deed obscure and doubtful 
 in its terms, had submitted it to counsel for advice, and afterwards 
 publicly abandoned their claim, and the property was sold at the instance 
 of creditors, and went into the hands of purchasers for valuable consid- 
 eration, they shall not be permitted afterwards to setup their claims: that 
 would sanction a practical fraud on the pui-chasers. Their acquiescence is 
 an abandonment of their rights. Jackson and others v. Inabnit 416 
 
 WASTE. 
 
 1. On a bill for partition, the Court, in ordering an account for rents and 
 
 profits, may also decree compensation for the deterioration of the land by 
 cultivation, as for waste. Buckler v. Farrow Ill 
 
 2. The doctrine of waste as applicable to this country, considered. Adni'rs of 
 
 Johnson v. Ex.'ors of Johnson 281 
 
 K. Cases in relation to waste committed by tenants for life and in common, 
 
 referred to, lb , 295 
 
 4. Where a tenant in common by cutting down and clearing woodland 
 
 beyond his interest, injures his co-tenant, he is liable for waste; and so too 
 if a tenant for life cut down more than is necessary for the enjoyment of 
 bis estate and injures the remainder, he is guilty of waste and liable to 
 account, lb 29G 
 
 5. Tenant for life in right of his wife of land and slaves, with remainder in fee 
 
 of one-sixth in the land after her death, cleared out woodland in the centre 
 of the tract, not leaving sufficient timber to repair the place: — Held, that if 
 there was open land sutficient for the employment of the wife's slaves when 
 the husband got possession, the clearing by him was waste. lb 297 
 
 6. Injunction granted to restrain defendant, pending an action to try titles, 
 
 from committing waste by cutting and carrying off the timber, where the 
 chief value of the land consisted in the timber, and it appeared more than 
 probable that defendant would not be able to pay the damages which might 
 be recovered. Kinsler\. Clarke 618 
 
 WILL, 
 
 1. Devise to several ascertained individuals, and to a class of individuals to 
 
 be ascertained on some future event, that class will take a share equal to 
 that of each of the ascertained individuals, and no more. Coimor, Adm'r, 
 andother^v. Johnson, Adm'r, and others 44 
 
 2. Testator devised that "after the death of his wife," his estate should be 
 
 given to seven persons by name, and to the children of E. C : — Held, that 
 the persons named took each, one eighth part of the estate, and the children 
 of E. C. living at the death of the tenant for life, the remaining eighth— and 
 that no estate vested in any of the children of E. C. who died before the 
 period of distribution (the death of the tenant for life,) so as to be trans- 
 missible to their personal representatives. lb 44, 
 
 3. The plantation on which the testator resided consisted of two adjoining 
 
 tracts, on one of which his mills were situated : in a devise of the plantation 
 to his wife for life, it was held, that the mills passed under tlie general 
 term "plantation." This construction is supported by another clause of 
 the will directing his houses, mills, and all his lands, to be equally divided 
 among his sons. Nash v. Savage and Nash, jEx'ors 50 
 
 4. Testator's will directs, that after the death of his wife, his negro girl Fan,
 
 530 INDEX. 
 
 is to be sold, and her pi-oceeds divided among his five eldest children; lout 
 if bis sou William choose he may keep Fan by paying to each of the said 
 children one hundred dollars. And directs the residue of his estate to be 
 divided among his five younger children : Fan had one child after the execu- 
 tion of the will and before testator's deatli, and five after his death, and 
 before, the death of the tenant for, life: — Held, that the increase of Fan 
 before testator's death, fell into the residuum: that a specific vested legacy 
 in Fan, to take efi'ect on the death of testator's wife, was not given either 
 William, or (on his refusal to take her at the price fixed) to the elder 
 children; but that this was a mere direction to divide the proceeds of Fan's 
 sale among the elder children, with a privilege to William of taking her 
 at that time at a fixed price; and consequently, that her increase after testa- 
 tor's death did not belong either to William ( if he had elected to take her) 
 or to the elder children, but fell into the residuum, and was divisible among 
 the younger children. Bnjson, Ad'mr, v. NickoUs and others 114 
 
 5. Testator by his will directed, that his estate should accumulate for the 
 
 benefit of his son and daughter, "then on either of them arriving of age, or 
 on the marrage of ray daughter prior to such period, that it be equally 
 shared between them, which they and their issue legally begotten are to 
 enjoy forever; but in case of the demise of my daughter, that the negroes 
 I got through her mother do revert to the children of P. S. L.; and likewise 
 that such negroes I got by the mother of my son to revert to H. B.:" and 
 by another clause declared "that in case of the deatli of my daughter and 
 son prior to their being of age, or having issue that the whole of my estate 
 be given to G. E. & E. £.:" — Held, that the following is the true construc- 
 tion: — 1st. If the daughter should die before m.arriage or maturity, thjj.t 
 the negroes received by the testator from her mother should revert to the 
 children of P. S. L.; 2d. That if his son should die before the same event 
 without children, the negroes received by his mother should go to H. B : 
 8d. That if both should die, the daughter before marriage or full age and 
 the son under age and without issue, then that the whole remaining estate 
 should go to G. E. & E. E. Edivards v. Barksdalc \ 192 
 
 6. The words of the devise to testator's son and daughter, will not create 
 
 a fee conditional in the real estate. The doctrine of fees conditional con- 
 sidered, lb 19G 
 
 7. A possibility of reverter is not divisable (Per Harper Ch.) Deas and Wife 
 
 V. Horry and others 248 
 
 8. Testfitrix devised to her grand-niece, viz: "one thousand acres of land, to 
 
 be taken off my plantation called Good Hope, to be run off conveniently ad- 
 joining the place called Cave Hall late the property of W. C., which said 
 plantation, called Cave Hall, shall be purchased and paid for out of ray 
 estate, and shall be given to my said grand-niece, making in all fourteen 
 hundred acres:" — Held, that this was a devise of the whole plantation 
 called Cave Hall although containing one thousand five hundred and fifty 
 acres, or its equivalent; and the executor was ordered to make the purchase 
 for the benefit of the devisee. Cheeves, Ex'or, v. Dallas and others , 300 
 
 9. Testatrix by her will gave pecuniary legacies to the amount of one thou- 
 
 sand and sixty dollars, and several specific bequests to her niece* ^I. E. H., 
 and others, of negroes and other property including her Indian leased 
 land, and then directs, viz : " 1 further will and devise that my negro 
 man Will, have the privilege of choosing his master, and be appraised to 
 him by two good men, and that all my other property be sold and the 
 proceeds be applied towards the legacies mentioned within, and the re- 
 maining sum of the legacies be paid by M. E. H." Will and the other pro- 
 perty directed to be sold, were sold for eight hundred and ninety-four 
 dollars; the debts amounted to three hundred and seventy-eight dollars: 
 Held, that the amount of the price of Will and the other property sold, 
 was a fund set apart for the payment of the pecuniary legacies, and was 
 exempted from the payment of the debts; that M. E. H. should make up 
 the deficiency in that sum, to the pecuniary legatees ; and that she and 
 the other specific legatees should contribute ratably to the payment of the 
 debts, Ex'orsof White v. Vaiic/han 334
 
 INDEX. 531 
 
 10. Whether a bequest is given absolutely, depending on the friendship and 
 good will of the legatee to deal with it as testator recommends, or condi- 
 tionally and coupled with a trust, depends on this : if it was intended that 
 he should have it entirely in his own power nnd discretion to nuikc the 
 application or not, it is absolutely given; but if. on the face of tlie will, 
 there is declaration plain, that he is to take it in trust, though the trust be 
 not declared or ineffectually declared, or become incapable of taking effect, 
 the party taking shall be a trustee for those who wouhl take either under 
 
 the will or at law. Fable\. Brou-n, Ex'or 308 
 
 11. Testator, by his will, made specific bequests to his grand-children, and lent 
 the rest of his estate to his wife for life, and then directs, viz :— " And at 
 her decease I desire that my executor do advertise and sell, and eqnalbj 
 divide all my estate between my children and or their heirs." At the execu- 
 tion of his will, and at his death, testator had a wife, two sons, both of 
 whom had children, and two grand-daughters, children of a deceased son. 
 On a bill filed by the grand-daughters (the children of the deceased son,) 
 claiming under the residuary clause: Held, that the limitation over on 
 the widow's death was a vested interest, and could vest only in such 
 persons as answered the description of "children" and " lieirs" of 
 children ; and none answering description of " heirs of children" but the 
 plaintiffs, they took with the two sons, on the widow's death, the sons one- 
 third each, and the plaintiffs the remaining third between them. Britton 
 and Wife v. Johnson, 430 
 
 12. Although the words " it is my wish" in a will, generally operate ds a direct 
 
 bequest, yet they will be construed to mean rather an inclination of the 
 mind, than an act of the will, where a different construction would produce 
 inconsistency and repugnance. Brimson and Wife v. Iluntefs Ad/n'rs and 
 
 Heirs 490 
 
 See Annuity. Appointment. Coxtribction, 1 E-maxcipation of Slaves, 
 5, 6. Increase. Limitation of Estates. Slaves, 5, 6. 
 
 WITNESS. 
 
 1. Where the husband would be a competent witness the wife may be sworn: - 
 
 and where the husband if living would have been competent to prove 
 fraud in a deed from himself to his sisters, his wife is competent to prove 
 his acts and declarations. Bell v. Coiel, 110 
 
 2. The interest to disqualify a witness must be present and certain, and not 
 
 uncertain and contingent : And, therefore, where a tenant for life of slaves 
 loaned them to her son, and on her death her estate, excluding these slaves, 
 was divided between her sou and daughter, on a bill by the remainder-men 
 against the administrators of the son, for specific delivery of the slaves, 
 the husband of the daughter is a competent witness for the plaintiffs, to 
 prove the identity of the slaves ; although if the plaintiffs should fail to 
 identify the slaves, and the defendants to prove that the stock had perished, 
 the estate of the tenant for life might be made liable for the value, and 
 the witness required to contribute. Horry ^ Trapier v. Glover and others, 525
 
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