
    Magdalen Green and others vs. The Bank of Georgetown and others.
    Equity— Trusts— Trustees.
    
    Under a dormant execution against G., his creditors having levied on certain negroes in his possession,, the wife and children of G. filed their bill against the creditors, and G., alleging that the negroes were held under a parol trust for their separate use, and praying that the sale be restrained; that the trusts be decreed and established, as against G., and that a trustee be appointed. G. admitted all the allegations of the bill. The bill having failed, as against the creditors, for want of proof as to the trusts, held that the Court would not interfere, at the instance of the plaintiffs,,to restrain the sale,although the levy was as against G., a technical trespass.. The Court also refused to declare the trusts or appoint a trustee.
    BEFORE DARGAN, CH-, AT GEORGETOWN,
    FEBRUARY, 1857.
    This was a bill filed, on behalf of Magdalen Green, wife of Richard G. Green, and their children, Richard B. Green, John W. Green, Hugh S. T. Green, and Sarah Green, and James W. Skinner and Mary A. hi's wife, also a child of the said Magdalen and Richard G., complainants against the said Richard G. Green, Samuel Kirton, the Bank of Georgetown and Alexander Robertson, executor of Benjamin Allston.
    The bill alleged that some time in the year 1845, certain negroes, to-wit: Betty, Phillis, Benn and Bess, the property of the said Richard G. Green, (one of the defendants,) were levied on and sold by the Sheriff of Georgetown District, under an execution against him, in favor of John W. Coachman, deceased, entered in the Sheriff’s office, July 29, 1844.
    That these negroes when sold, were purchased by the late Mr. Benjamin Allston, at a full price, and thé money applied towards satisfaction of the said execution. That after his purchase he gave them to the wife and children of the said Richard G-. Green, to their separate use, free from the control, liabilities, &c., of the said Richard G. Green.
    That this gift was made verbally, and in pursuance thereof the negroes were delivered, and went into the possession of Richard G., who received them upon such terms, and who assumed the character of trustee for his wife and children, who composed his family, and resided under the same roof with him.
    That frequentfy afterwards, Mr. Allston expressed his purpose to have an instrument of writing, in which the said trust should be expressed and declared; that this he stated distinctly and particularly in the spring of the year 1847, when about to leave the district for the summer, declaring that as soon as he returned he would have such an instrument drawn up, but before he returned he sickened and died, so that the terms and trusts of the said gift were never reduced to writing.
    That the said Benjamin Allston departed this life, leaving duly executed his last will and testament, whereby he appointed Alexander Robertson, Esq., his executor, who has qualified, as such on his will.
    That ever since the gift of Mr. Allston, when the negroes passed under the control of the said Richard G. Green, for the use of his wife and children, they have so remained, and have been used and appropriated to their benefit and support; that the said Richard has never set up or pretended any claim to such negroes in his own right, but has always admitted that he held them for the exclusive benefit of his wife and children under the said gift of Mr. Allston.
    That all the facts and circumstances attending the possession of the negroes, have been well known since the said gift to the Bank of Georgetown and to Samuel Kirton.
    That some time about the middle of April last, Thomas R. Sessions, Sheriff of Georgetown, under the direction, and as the agent of the said Samuel Barton and Bank of Georgetown, claiming to be entitled to the said execution against Richard G. Green, levied upon and took out of the possession of himself and family, the negro slaves, the said Betty, one of those previously purchased by Mr. Allston as above, and her child Anthony, born since such purchase and gift, and Maxian, the child of the said Phillis, so purchased and given by Mr. All-ston as aforesaid, also born since the said purchase and gift in the family of the said Richard G. Green.
    That the execution under which the said Thomas R. Sessions acted, in seizing the said negroes, is that lodged in the office 29th of July, 1844, above specified, and towards the satisfaction of which the money received on the former sale was applied.
    That the said Thomas R. Sessions, having received a bond of indemnity from the said Bank of Georgetown and Samuel Kirton, after having levied on the said negroes, at their instance as aforesaid, now holds them in the common jail, and purposes, under their instructions, to sell the negroes and apply the proceeds to the payment of the said execution claimed by the said Kirton and Bank.
    That complainant, Magdalen Green, is the wife, and the complainants, Richard B. Green, John W. Green, Hugh S. T. Green, (the two latter infants,) Sarah J. Green and Mary A. S., wife of James W. Skinner, are the only children of the said Richard G. Green.
    The bill prayed that defendant, Kirton and the Bank, be restrained from selling and disposing of the said negroes; that the interests of the complainants in the said negroes, and the trusts of the gift made by Mr. Allston, for the benefit of the complainants, may be decreed against the said Richard G. Green, and established, and a proper person appointed trustee, to hold the same for their use.
    That Richard G. Green, Samuel Kirton, the Bank of Georgetown and Alexander Robertson, executor of Benjamin Allston, may answer the allegations of the bill, and that subpoena issue against them.
    
      Upon motion before the Commissioner, an injunction was granted^ restraining the defendants, Kirton and the Bank of Georgetown, and the Sheriff, as their agent, from proceeding under the execution and selling the negroes.
    The bill was taken, pro confesso, against all the defendants, but, subsequently, answers were filed in behalf of Samuel Kir-ton, the Bank of Georgetown and Mr. Robertson, as the executor of Mr. Allston. Richard G. Green also answered, admitting all the allegations of the bill.
    The answer of Kirton admits, that "Thomas R. Sessions', in obedience to instructions from him and his co-defendants, the Bank of Georgetown, did levy upon the slaves mentioned in the said bill, under the execution therein described, and that the execution and judgment upon which it was issued had been, before that time, duly assigned by the said John W. Coachman to the Bank, and by the said Bank, in fact, assigned to this defendant. But whether or not'these slaves are the same as those sold under the previous levy, mentioned in the same bill, or are the descendants of them, this defendant cannot by any means admit, and prays proof thereof;” denies that the slaves mentioned in the bill are the property of Mr. Benjamin Allston, or of his estate, either in his own right, or as a trustee for complainants, and that the said trust therein, pretended to be set up, ever was created.”
    “ Believes that it never was the intention, either of Mr. All-ston or of Richard G. Green, that the trusts so set up ever should exist; and he positively denies that if such intention existed it ever was consummated.”
    “Admits that the said slaves have been, and are, in the possession of Richard G. Green, for a long period of time, but positively alleges that the said Green neither’ set up nor pretended to set up any other claim to the possession of them, than devolved upon him as the natural protector and guardian of his wife and children, or in any other way, as pretended in said bill, than as their actual owner.”
    But, on the contrary thereof, defendant says that he has had very many dealings with the said Richard G. Green, for a course of years; that in these dealings Green frequently spoke of the said slaves purchased by Mr. Allston, at the previous levy, and also the slaves mentioned in the bill as his own property, liable for and applicable to his debts.
    That upon one occasion Green offered said slaves to him for sale, and in order to assure him of a good title in them, informed him that Mr. Allston had purchased, at the said sale, for him, the said Green, and on his behalf; that further, to sanction his assertion, Green showed to him a letter from Mr. Allston, in the handwriting of Eleazer Waterman, Esq., which letter clearly recognized the slaves as the property of Green, and appointed an early day for the re-payment of the money advanced for them. That this letter was but a short time since in the possession of Green, and must now be within his control. And defendant craves that it may be ordered to be produced by said Green, and exhibited to this Honorable Court.
    Insists “that the slaves seized by the Sheriff are the property of Green, and liable for his debts.” That the judgment under which the Sheriff proceeded, constituted a valid claim against Green, and craves against him a decree for the application of the said property to the said debt, as well as all others, that may be brought to the attention of the Honorable Court.
    The answer of the Bank of Georgetown admits the levy by Sheriff Sessions, of the negroes named in the bill as the property of Richard G. Green, under the execution against him in favor of John W. Coachman, subsequently assigned to the Bank, and by it assigned to Kirton.
    Insists that the said slaves are the property of said Green, and liable to his debts. That the allegations in the bill, as to the purchase of Mr. Allston, and the supposed trust, are improbable, “ and in fact untrue.”
    That the facts, as previously stated by Green, and which defendant believes to be true, are that Mr. Benjamin Allston was the ostensible purchaser of said slaves at the previous levy. That he either became the purchaser of the said slaves, as the agent of Richard G. Green, or after the said purchase, induced by hi§ own representations, and also, as must be concluded from his well known character, led thereto by his kind nature, he returned the slaves into the possession of the said Richard G. Green, with the understanding that the said Richard G. Green should keep them and repay to him, the said Benjamin Allston, the amount of bis bid, whenever he was able to do so. That thus the slaves were but for a very short time, ^ if ever, out of Green’s possession; but, at any rate, he took them into his possession; used them as his own property; propped his falling credit time and again, by their ostensible ownership; made promises for the payment of debts out of the proceeds of the anticipated sale of them. That Mr. All-ston, himself, always acted upon this construction, and has so expressed himself in writing, as may be seen by the production of a letter in the possession of R. G. Green, wjrich should be produced before this Honorable Court; or, by proof of its contents, that the pretended trust, so uncertain in its character and terms, never had any foundation in fact, and would never have been set up, had not the fraudulent aim of Richard G. Green been prevented, and his possession, in the face of his creditors, been interrupted. That thus the said slaves are the property in law, and in fact, of the said Richard G. Green, the said defendant in execution, and the amount of money paid by the said Benjamin Allston, constitutes a debt against the said Richard G. Green. That at all events, and apart from the action of the Sheriff, under the said execution, the said slaves are liable for the debts of the said Richard G. Green, and that this defendant prays that, as against its said co-defendant, it may be ordered and decreed that the said property be so applied.
    Alexander Robertson, Esq., says he knows nothing of the alleged sale of the slaves mentioned in the bill, or the purchase by Mr. Allston, except that being then one of the firm of Robertson & Blacklock, the factors of Mr. Allston, he paid out of the funds of Mr. Allston in their hands, the sum of nine hundred and two dollars ($902,) on an order drawn in favor of Geo. Durant, the Sheriff, as follows:
    
      Georgetown, March 3d, 1845.
    Messrs. Robertson & Blacklock :
    Gentlemen: — Please pay to the order of George Durant, Sheriff, nine hundred and two dollars, being the purchase money, at Sheriff’s sale, of four negroes, named Betty, Phillis, Ben and Bess, purchased by me at the Sheriff’s sale to-day, under the case, Executors of Lathrop against R. G. Green, and charge,
    Yours, respectfully,
    BENJAMIN ALLSTON.
    That Mr. Allston died about the Fall of 1847, and left his will appointing defendant executor, and he has qualified as such. That the negroes in question, never came into his possession, as a part of Mr. Allston’s estate; that he never claimed them as such, nor does he now desire to interpose any such claim.
    That he knows nothing of his own knowledge of the gift and trust set forth in the bill, but has heard from some of the family of his testator, that they believed that these negroes were intended, in some way, for the benefit of Mr. Green’s family, and “ he is willing that such order and decree in the premises, with regard to the said negroes, should be made, as may seem right to the Court. And prays,” &c.
    Upon these pleadings the cause came to be heard before his Honor, Chancellor Dargan, at Georgetown Sittings, 1857.
    At the hearing, it was proved by the Sheriff, Sessions, that he had levied on three negroes, Betty, Anthopy and Maxian, as the property of Richard G. Green, under an execution in the case of Coachman vs. Green, and it was admitted that this was the same lodged in 1844, under which the negroes bought by Mr. Allston, 3d March, 1845, that is Betty, Phillis, Ben and Bess, had been sold; and it was also admitted that the negroes are the same, that is, Betty and her child and grandchild, bora since the previous sale.
    Mr. Richard G. Green was offered as a witness on behalf of the complainant, but objected to as interested, and the husband .of the complainant in the cause, and the objection was sustained.
    It was proved by the Tax Collector that the negroes had been returned by Mr. Richard G. Green, as the property of Mr. Allston, until his death, when it was changed and returned as the trust estate of Benj. Allston, was again changed the last year, and then returned hy R. G. Green, for family.
    Admitted that the money bid for the negroes was paid by Mr. Allston, that is, that the draft, copied in the executor’s answer, was thus paid.
    After hearing the argument of Counsel, his Plonor made the following order:
    “The bill and answer being read, and testimony adduced, and Counsel heard, it is ordered, adjudged and decreed, that the bill be dismissed for want of proof of the allegations thereof, and that the injunction heretofore granted in this case be dissolved.”
    The complainants appealed on the grounds:
    1. For that it appearing that the defendants, Samuel Kirton and the Bank of Georgetown had, through the Sheriff, levied upon and seized the negroes mentioned in the bill and were about to sell the ,same wrongfully, and without legal authority, inasmuch as the execution under which they assumed to act, had long since ceased to possess such authority, it is submitted that they should be restrained by injunction from carrying out their illegal purpose.
    
      
      2. For that it appearing that the defendant, Richard G. Green, admitted the trust set up by the complainants, and acquiesced in the appointment of a new trustee, such trusts should have been decreed against him, and provision made for a new trustee, with a proper declaration of trust.
    
      Mitchell 8,- Dozier, for Appellant.
    
      Munro 8,- Simonton, for Bank.
    
      Shaw, for Kirton.
   The opinion of the Court was delivered by

Wardiaw, Ch.

The wife and children of Richard G. Green, plaintiffs, proceed against him and the executor of Benjamin Allston, the Bank of Georgetown and Samuel Kirton, defendants, for the purposes of having a parol trust as to certain slaves in behalf of the plaintiffs, declared and established, and of enjoining the Bank and Kirton from selling and disposing of said slaves. The complaint is, that Benjamin Allston purchased these slaves March 3, 1845, at Sheriff's sale, under a fi. fa. issued in 1841, in the case of Coachman, executor of Lathrop, against R. G. Green, for a full price appropriated towards satisfaction of the execution, and delivered them to plaintiffs for their separate use, free from the control and liabilities of R. G. Green ; and that plaintiffs, remaining in the enjoyment of this property, were unlawfully dispossessed in April, 1856, by the Sheriff of Georgetown, acting under the direction of the Bank and Kirton, and without other authority than the execution mentioned, which had lost its activity by lack of renewal. Richard G. Green, husband and father of plaintiffs, admitted on the bill all its allegations ; the executor of B. Allston, in his answer, ignored the whole matter, except the payment for his purchase' by B. Allston ; and the Bank and Kirton, who were the assignees of the said execution, denied all notice or belief that these slaves, which were in the possession of Richard G. Green, were held on any trust whatsoever. No material evidence was offered at the hearing. The Chancellor adjudged and ordered that the bill be dismissed for want of proof of its allegations, and that an injunction which had been granted by the Commissioner be dissolved. From this decree the plaintiffs appeal.

Their first ground of appeal asserts, that as Kirton and the Bank had seized the slaves without legal authority, they should be restrained by injunction from consummating their illegal purpose. It is not disputed that the seizure of the slaves by these defendants was not authorized by a dormant execution, and that they were in fact naked trespassers. It is likely -that in the proper tribunal, where trespasses are considered and damages awarded, R. G. Green might recover for the unlawful injury to his possession; but he makes no complaint as plaintiff or appellant. The plaintiffs insist that through him, who acknowledges their beneficial interests, they may demand the restoration of the slaves to that legal possession in which they were before this possession was invaded by the unlawful act of some of the defendants. Frequently in this Court, where all the parties in interest are before the tribunal, it is regarded as indifferent on which side of the controversy they may be arrayed; but it is very unusual to allow to any party to complain of the invasion of the merely legal rights of another where the latter is silent and acquiescent. The jurisdiction of the Court for the specific delivery of such personal property as is now in controversy, is firmly established, where the right of the plaintiff is clear; but it never has been, and it ought not to be exercised where the right of the plaintiff is liable to be soon defeated and the possession of the defendant may become lawful by easy resort to legal procedure. Here the wrong of the Bank and Kirton consists in levying under a dormant execution, which may be soon revived. A technical trespass has been committed, but the Court of Law is the proper tribunal for the redress of this injury. If there had been allegation and proof that defendants were insolvent, this Court might properly ..have interfered, possibly for restoration, certainly for preservation of the property pending litigation; but the solvency of the offending defendants is conceded.

• The second ground of appeal affirms that as defendant, R. G. Green, admitted the trust set up by plaintiffs, such trust should have been declared by decree against him, and a new trustee appointed. The brief does not exhibit that there was any prayer for the substitution of trustees; and if it had, such substitution is necessarily subsequent in its nature to the ascertainment and declaration of the trusts. But how is it practicable for the Court, on the information afforded, to ascertain what the trusts were. Was the wife to have a separate estate for life to her separate use with remainder to her husband, if survivor, or to her children, in any event, at her death ? Or were the wife and children to enjoy the estate jointly, in exclusion of the husband? Were further limitations intended? We cannot tell. The plaintiffs, however, do not need our aid. The defendant, R. G. Green, against whom alone they ask the interposition of the Court in this respect, has already admitted all their allegations, and undoubtedly will give them any declaration of trust they may desire. They do not complain that he is contumacious. It is manifest that the purpose of the bill was to restrain the creditors of R. G. Green, and all beyond is a fetch.

It is ordered and decreed that the decree be affirmed and the appeal dismissed.

Dunkin & Da roan, CC., concurred.

Appeal dismissed.  