Burroughs v. McNeill

• Decision Date: 30 June 1839
• Citation: 22 N.C. 297,2 Dev. 297
• Parties: BRYAN BURROUGHS v. DANIEL McNEILL.
• Court: North Carolina Supreme Court

2 Dev. & Bat.Eq. 297

22 N.C. 297

BRYAN BURROUGHS

v.DANIEL McNEILL.

Supreme Court of North Carolina.

June Term, 1839.

Where a plaintiff can have as effectual and complete a remedy in a Court of Law as that for which he invokes the aid of a Court of Equity--a remedy, direct, certain and adequate--the defendant may insist that this remedy shall be sought for in the ordinary tribunal. But, this objection to the exercise of jurisdiction ought to be taken in due order and apt time; for, otherwise, if it be one which the party may waive, it will be deemed to have been waived, by failure to bring it forward to the notice of the Court in limine. Where the objection has not only not been taken in the pleadings, but the defendant has expressly submitted to the jurisdiction of the court, by praying of it to decide on the question of his liability, the objection must be regarded as one not of strict right, but addressed to the sound discretion of the Court.

Upon an agreement for an indemnity, the plaintiff has a right, without waiting for actual loss, to call on the defendant, in a Court of Equity to indemnify him against impending injury, and, to that extent, enforce the specific execution of the agreement between them. But, before an actual loss sustained, the plaintiff can maintain no action at law upon the agreement.

Where a bond of indemnity is in the hands of the defendant, the plaintiff has a right to go into a Court of Equity for an exhibition of it, and for such relief there as, upon its exhibition, may be deemed just; and this without any previous demand of the instrument. The want of such demand may affect the costs, but does not per se oust the court of the right to dccree its exhibition.

Where an agreement was made between an executor and D. M., that the latter should take possession of certain slaves belonging to the testator's estate, and keep them until the executor should be called upon for them and their hires by the person entitled thereto, and should indemnify the executor from all loss on account thereof; and the executor stipulated, that if so saved harmless, he would not, as executor or otherwise, have any further claim to said slaves, and moreover relinquish to D. M. all the right which he had, as executor, to them, it was held, that the commissions allowed to the executor in his account with the porsons entitled, for collecting the hires of the slaves while in the possession of D. M., belonged to the latter; but that he was not entitled to the commissions allowed the executor for selling said slaves as commissioner under a decree of Court.

The plaintiff, Bryan Burroughs, filed his bill against the defendant, Daniel McNeil, in the Superior Court of Equity for the county of Moore, on the 1st of September, 1835. The bill set forth in substance that the plaintiff was the executor of one Joseph Duckworth, who, by his last will, had bequeathed certain negroes to his wife for life, but had made no effectual disposition of the residuary interest therein after her death--that Mrs. Duckworth died in the year 1829--and the next of kin of the plaintiff's testator resided in different parts of the United States--that the plaintiff, having possession of the slaves, as the executor of Joseph Duckworth, it was proposed by the defendant that he should take possession thereof, as plaintiff's agent, until distribution should be made amongst the next of kin--that this proposition was assented to by the plaintiff, upon the defendant binding himself to deliver the said negroes to plaintiff, when they should be required for distribution, and account to the plaintiff for the hire thereof, as the plaintiff would be bound to account to the next of kin--that thereupon the defendant executed to the plaintiff an obligation to that effect, the precise nature whereof the plaintiff could not state, because he permitted the bond to go into defendant's possession, who had ever since retained, and yet refused to deliver it. The bill then proceeded to state that the next of kin of Joseph Duckworth filed their petition against the plaintiff, in the County Court of Moore, and in 1832, had a decree against the plaintiff for a considerable sum of money on account of the hire of the said negroes, since the death of Mrs. Duckworth, and during the time when the said negroes were held or hired out by the defendant, under the said agreement--and that the defendant refused to account with the plaintiff, or to pay over the hire of the negroes held under said agreement. The bill prayed that the defendant might be compelled to exhibit to the Court the obligation so in his possession, and to account with and pay over to the plaintiff what was due for the hire and services of the negroes so held, and for general relief.

The defendant put in his answer on the 5th of March, 1836. After admitting, in substance, the bequest of the negroes and the death of Mrs. Duckworth, and that the plaintiff was the executor of Joseph Duckworth--the defendant denied that the plaintiff, upon Mrs. Duckworth's death, took the actual possession of the negroes; but said that the plaintiff, claiming the possession of them as executor, and the defendant having them in possession, and being anxious to retain that possession, in order the better to assert a right which he set up to a share therein, under a conveyance of some of the next of kin of Joseph Duckworth, the plaintiff and defendant came to the agreement in relation thereto, which was evidenced by two original instruments exhibited with the answer, one of them being the obligation called for in the bill; and the defendant denied that he ever refused to let the complainant have that obligation, or that the complainant called on him therefor. The defendant admitted that under this agreement, he held possession of the negroes until the sale which was made of them in August, 1832. He further stated that, in the account taken in the County Court, on the petition of the next of kin, the hire of the negroes for 1829, 1830, and 1831, was estimated at $175 per annum--said that the defendant claimed and had allowed to him, one year's hire; and said that he had also received $87, for the hire of the negroes from 1st January to August, 1832, when the sale under the decree took place. The defendant claimed to be entitled to the share of Benjamin Duckworth, in the proceeds of the negroes, and to reasonable compensation for his services in managing the estate, and to have delivered over to him the proceeds of the sales made in the decree referred to, by virtue of his agreement with the plaintiff--which agreement he professed he had ever been willing to execute; and the question whether, according to its terms, spirit and meaning, he was, in any manner, accountable to the plaintiff, he submitted to the determination of the Court.

The exhibits accompanying the answer both bore date 27th of February, 1830-- the one was an obligation in the penal sum of $10,000, payable to the plaintiff, executed by the defendant and two others as his sureties, with a condition which, after reciting the will of Joseph Duckworth; the death of Hannah Duckworth; the duty of the plaintiff, as executor of said Joseph, to see the will executed; the taking possession of the slaves by the defendant, under a purchase from the next of kin of the testator, or some of them; and the willingness of the plaintiff to permit the defendant to retain that possession, and have the title to the slaves properly adjudicated, so that he should be saved harmless, as the executor of Joseph Duckworth, and not made liable for thus suffering the negroes to remain in the defendant's possession; proceeded to declare, that if the defendant should fully indemnify, and save harmless, the plaintiff in all suits, judgments, recoveries, and all costs and expenditures, whether of fees to attorneys, or...