
    Maria Miller, Administratrix of Daniel Miller v. James Furse, and Others.
    An answer overrules a demurrer to the same matter; but the defendant may, in his answer, state, by way of pleading, that the complainant has plain, and adequate remedy at law, and object, at the hearing, to the want of jurisdiction, on this ground, appearing on the face of the bill.
    Bill to injoin a levy on slaves under execution against a third person, dismissed for want of equity; the complainant stating a plain legal title, and a trespass committed.
    
    A bill may be dismissed, as to some of the defendants, for want of jurisdiction, and retained as to others, who have not objected to the jurisdiction in season.
    An objection to the jurisdiction, on the ground that the complainant has plain and adequate remedy at law, must be made by demurrer, or other pleading. It comes too late at the hearing. M’Teer v. Moorer and Ford, ante, 62, contra overruled.
    The jurisdiction can be objected to, in any stage of the proceeding) only in those cases, where the defec* is such, as that the matter could not, by any circumstances, be brought within the jurisdiction of the Court. In all other cases, the objection must be made by the pleadings.
    A bill of sale, absolute on its face, is void even as to subsequent creditors, where there is a secret trust for the grantor; although ■ made with a view to prevent his obtaining credit.
    A decree cannot be made for the complainant, upon a title not stated.inhis bill, nor relied on at the hearing. In general, proof of such title should be objected to when offered, and, if not objected to, may furnish ground for a decree ; but, if only incidentally brought out, in evidence, and not urged at the hearing, the defendant should not be prejudiced, by his omitting then to object to it.
    At Barnwell, February, 1830.
    Harper, Ch. The bill states, that the complainant was lately in possession of certain slaves, Csesar, and Hagar, and the children of Hagar, which her father, and intestate, Daniel Miller, purchased in the year 1814, from ono John R.'M’Lewrath, who executed a bill of sale of them, to him, and of which he remained in quiet possession, until his death, in 1819, when they came into the possession of the complainant, as his administratrix, and remained in her possession, until, very recently, the defendants, James Furse, and Higginbottom & Collins, having obtained judgments against John R. M’Lewrath, caused executions to be levied on them; that of Furse, oñ Cassar, and those of Higginbottom & Collins, on Hagar, and her children, claiming them, as the property of M’Lewrath. The bill prayed, that the executions may be perpetually injoined, as to this property, /
    The defendant, James Furse, by his answer, charges the alleged sale, in 1814, to have been fraudulent, and void, as to M’Lewrath’s creditors.
    Tho joint answer of Higginbottom & Collins makes a similar charge ; and the defendants say they demur, because the complainant might have plain, and adequate remedy at law. I shall first consider the case, with respect to them.
    A party cannot answer, and demur, to the same matter. The answer overrules the demurrer; that is to say, if the defendant answers, he must answer fully. The object of a demurrer is to save the necessity of answering. But if there be any matter, which might be the subject of a plea in bar of the complainant’s bill, the defendant may state, and rely upon it, iff his answer. Mitf. 245. — 6. Although it is called a demurrer, therefore, I must regard this as a statement, by way of pleading, that complainant has plain, and adequate remedy at law. The form is not material. So considered, the objection must prevail •, for the bill states a plain, legal title, and a trespass committed.
    A bill may be dismissed, however, as to some of the defendants, and retained as to others. The defendant, Furse, makes full answer, and states a defence, without relying on the objection, that the complainant has adequate remedy at law; although the objection was taken ore tenús, at the hearing. This makes the question, whether such an objection to the jurisdiction of the Court can be made, after answer, and, for the first time, at the hearing. In a hasty opinion, delivered at Walterborough, I decided, that it might be so made, but, upon further reflection, I am satisfied that I was mistaken.
    
      vide M’Teei* •y.Moorer, and Fovd, ante, G2.
    Lord Redesdale observes, in his Treatise on Equity Pleadings, that “ in general, if a demurrer would hold to a bill, the Court, though the defendant answers, will not grant relief, upon hearing the cause.” Mitf. 100.' This is certainly true, in general. The bill must state such a case, as to authorize a decree. If the statement be not such as to show, that the party has a right, intitling him to a remedy in some jurisdiction, no decree can of course be made. But it is certain, that this Court does not, of its own motion, take notice of the defect of equity jurisdiction ; and does often decree in matters of mere legal right. I apprehend that the difficulty has arisen, like many of the disputes in the world, from the ambiguous use of terms. It is commonly said, that consent cannot give jurisdiction: and this is true, if the words are taken to relate to those matters, which cannot be brought incidentally within the jurisdiction of the Court. No consent could give this Court jurisdiction, in a criminal matter ; and the Court would be bound to take the objection, if the parties did not. But, with very few exceptions, there is is no question of civil right, in matters of property, that may not come within the jurisdiction of the Court. “ The Court of Chancery, being a supreme Court of general jurisdiction, nothing shall be intended to be out of its jurisdiction, which is not shewn to be so.” Mitf. 183. Lord Redesdale, after noticing the Courts of local jurisdiction, as of the counties palatine of Chester, &c., a.nd observing that where the circumstances that give them jurisdiction occur, their jurisdiction is exclusive, in matters of law and equity, adds, “ though if these circumstances are not shewn, or if they are not shewn in proper time, and the defendant, instead of resting on them, and declining the jurisdiction, enters into the defence at large, the Court, having general jurisdiction, will exercise it. But where no circumstances can give the chancery jurisdiction, as in the case alluded to, of a bill of review, and appeal from a decree in a county palatine, it will not entertain the suit, even though the defendant does not object to its deciding on the subject.” Mitf. 135.
    When it is said that chancery has no jurisdiction in a matter of civil right, triable at law, it is meant, that circumstances do not exist t0 authorize the exercise of the jurisdiction, that under other ciroumstanoes *l would possess. What is said by Lord Hardwicke, in Penn v. Lord Baltimore, 1 Yes. 446,1 think must be taken to have reference to the distinction I have attempted. He says, “ to be sure, a plea to the jurisdiction must be offered in the first instance, and put in primo die; and answering submits to the jurisdiction : much more when there is a proceeding to hearing on the merits, which would be conclusive at common law. Yet a Court of Equity which can exercise a more liberal discretion than common law courts, if a plain defect of jurisdiction appears at the hearing, will no more make a decree, than where a plain want of equity appears.” He states, that answering is a submission to the jurisdiction, and that, in general, an objection to the jurisdiction cannot be taken at the hearing; and I think by considering the nature of the case, to which his remarks were applied, it will appear, that by a plain want oj jurisdiction, he meant such a defect, as that the matter could not, by any circumstances, be brought within the jurisdiction of the Court. It was a bill for a specific performance of an agreement, respecting the boundaries of provinces in America. Here, there existed circumstances which clearly constituted a ground of the peculiar equity jurisdiction. Specific performance was claimed, and the question was, whether this was a matter which eould, by any means, be brought within the jurisdiction, or belonged exclusively to the king and council. Lord Hardwicke decided in favor of the jurisdiction, because, although the Court could have no jurisdiction over boundaries in America, it had jurisdiction in personam, in respect of a contract made in England. What is said in Green v. Rutherforth, 1 Ves. 471, is not, I think, inconsistent with this. Lord Hardwicke there says, there can be no submission to an inferior and limited jurisdiction, by appearing, pleading, or answering; leaving us to infer, that there may be such submission to a superior Court of general jurisdiction.
    The case of Trelawney v. Williams, 2 Vern. 483, is direct on this point. It was a bill for an account of the product of a tin mine, and it was objected, at the hearing, that the plaintiff ought to have sued in the Stannary Court. The Lord Keeper decided, that to oust this Court, the defendant ought to have pleaded to the jurisdiction ; and that the objection came too late at the hearing. See also, Mr. Cox’s note to Strode v. Little, 1 Vern. 59.
    In Burgess v. Wheate, 1 Eden, 190, the Master of the Rolls observed, that by bringing the cause into equity, Burgess was estopped so allegd the defect of jurisdiction ; and refers to Sir John Warden’s case, before Lord Talbot, in which there was an objection for , , . . ,, want of jurisdiction, and that the matter was properly triable at law : “ but it being disclosed, that he had filed a cross bill, the Court did not enter into that objection, but said the defendant'had-given a jurisdiction.” To the English cases, are to be added the authority of Chancellor .Kent, in Underhill v. Van Cortland, 2 Johns. C. R. 369, and Livingston v. Livingston, 4 Johns. C. R. 290. The authority of the former of these cases, seems to be recognized by the Appeal Court of this State, in Wilson v. Cheshire, 1 M’C. Ch. 242 : although, indeed, in that case, the objection was taken, for the first time, in the Appeal Court, after a decree below.
    That matters should be unnecessarily drawn from the ordinary tribunals of the country, to this jurisdiction, is an abuse, and to be guarded against. But I am not aware that the view I have taken, has any material tendency to aggravate the abuse. If parties are agreed to litigate their civil rights here, they may always admit such circumstances as will form a ground for the exercise of the equity jurisdiction, unless the parties object; and there can be no hardship in requiring the objection to be made in the first instance, before the delay, and expence, of preparing the cause for trial, has been incurred. This would be an abuse of a different sort. To say, that the objection may be taken at the hearing, only in cases where there is a plain defect of Equity jurisdiction, would be to have no rule at all, but to leave it to the discretion of the judge in every particular instance. This sort of uncertainty is the greatest of abuses. 1 think, therefore, the defendant, Furse, cannot object, that there is plain and adequate remedy at law.
    It remains to inquire into the title, which the complainant has-shewn to the slaves in question. A bill of sale of the slaves was produced, on the part of complainant, executed by John R. M’Lewrath, in 1814, to the intestate, Daniel -Miller, and a bond of Miller to M’Lewratb, of the same date, for $800-, alleged to have been the consideration. A receipt, purporting to be from M’Lewrath to Miller, for the last payment of the slaves, $600, bearing date 15th March, 1818, was also given in evidence. On this bill of sale is indorsed a writing, purporting to be a quit claim, and release, of the same slaves to the complainant, and Mrs. Cornelia G. M’Kenzie,dated 10th February, 1820. The delivery of a horse, and of $>50,-in money, by Miller to M’Lewrath, in 1818, was also proved ; and likewise the payment of some small sums on his account. Two witnesses testified to declarations of M’Lewrath, and Miller, that it was an actual, and bona fide, transfer ; and that they were regarded as Miller’s negroes. It appears, that they continued at the plantation, and residence of Miller, until his death, in 1819: but M’Le-wrath was Miller’s step-son, and lived in the same house, until he went to the western country, in 1818. He returned after Miller’s death, and livedasome time on the plantation, with the complainant; but afterwards went again to the western country, from which he has never returned.
    On the other side, was the testimony of the witness, Enicks, to some acts of ownership exercised by M’Lewrath over the slave, Ctesar, after Miller’s death ; and that he was known as M’Lewrath’s Caesar: and that of John Kellogg, who testified, that he was intimately acquainted with Miller, and that in repeated conversations, from the date of the bill of sale, up to the year of his death, 1819, Miller informed him, that they were M’Lewrath’s negroes ; that he had taken a bill of sale for them, of which he never intended to take any advantage ; and that it was to prevent M’Lewrath’s wasting them, as he was imbecile, and improvident, but might become capable of taking care of property in future.
    The testimony of this last witness, whose credit was not disputed, goes clearly to establish a trust in Miller for M’Lewrath, and that the sale of 1814 was merely colorable. I do not say that it was fraudulent, as being intended to defraud creditors. It does not appear, that M’Lewrath was in debt, at the time ; and it was probably intended to prevent his obtaining credit in future. The declarations of Miller, and M’Lewrath, that it was an actual transfer, are of no effect against this testimony; for these were in pursuance of their plan, of holding the slaves out to the world as the property of Miller, he only explaining the true state of things, to his friend, Kellogg. The receipt, bearing date in 1818, may have been in furtherance of the same design ; and Kellogg speaks of Miller’s declarations in 1819, after the date of the receipt. Without intending to cast any imputation, I must observe, that there are suspicious circumstances attending that receipt. Upon examination, it appears, that the surname is spelt differently, from what it is in three other instances of his signature, produced to the Court, when he signed in the presence of witnesses; and the initial of the middle name is omitted. The handwriting, too, appears to me, to have but a faint resemblance to that of the other signatures. That complainant did not include these slaves in the inventory of her father’s personal estate, is also a circumstance to corroborate the testimony of Kellogg, and to shew, that she knew the transfer to have been colorable. She attempted an explanation of this in the bill, but that is no evidence»
    
      The case may be different, with respect to the release, or quit claim, of the date of February, 1820. I do not perceive any thing to show, that this was not intended to effect an actual transfer of the property. The testimony of defendant’s witness, Eni'cks, that M’Lewrath employed him to draw a bill of sale to complainant of the same slaves, assigning as a reason, that he had no children, that his half brother, (I suppose his next of kin,) was tyrannical to slaves, and that he preferred complainant to have them, seems to show a serious purpose of transferring the slaves to complainant; and this purpose further appears, from his conduct, in removing permanently to the western country, leaving them in her possession. If there was any trust intended, I should conjecture that it was for his life, complainant to have the property afterwards.
    But although intended to transfer, it purports to be voluntary, and may be fraudulent, as to creditors. The general rule is, that a voluntary conveyance, made by a person indebted at the time, shall be presumed fraudulent as to creditors. Now there is a deficiency of the evidence, which would enable me to decide, in relation to the validity of this conveyance, whether he was indebted at the time, or not; and to what extent the judgments of the defendants, which were in evidence, were recovered after the date of the instrument of release, or quit claim. There is strong ground to conjecture, that some of the causes of action, on which they were founded, were inexistence before that date, but this was not proved; and besides, the witness who proved the execution of the instrument, stated, that there was an error in the date, but he did not state the true date. I find myself unable to come to a satisfactory conclusion, without directing a reference to ascertain these facts.
    It is, therefore, ordered, and decreed, that the bill be dismissed, as to the defendants, Higginbottom <& Collins, with costs ; and that it be referred to the commissioner, to inquire, and report, the true date of the instrument of release, or quit claim, before mentioned, and also the amount of property which was owned by John R. M’Lewrath, independently of the slaves conveyed, or released, and the amount of his debts at the time of the said release, or conveyance.
    From this order, the defendant, Furse, appealed, and moved that it be reversed, and the bill dismissed with costs, on the following grounds:
    1. That the defendant was intitled to object to the jurisdiction at the hearing; and at all events, as the bill was dismissed, as to some of the defendants, on that ground, it ought to have been dismissed as to all. Butler v. Ardis, 2 M’C. Ch. 60.
    
      2. That upon the merits of the case put in issue by the pleadings, the defendant, according to the view taken of it by the Chancellor, was intitled to have the bill dismissed; and the inquiry directed to be made by the commissioner is wholly irrelevant, and foreign to the issue.
    3. That the complainant, neither in her bill, nor at the hearing, relied upon the release, or quit claim, set up by the decree ; and the defendant has had no opportunity of answering the case made by that title.
    Patterson, for the motion.
    
      
      It has been since decided, that a bill will lie for the specific delivery of slaves. Horry and Trapier o, Glover, 2 Hill’s Ch, 523. And see Sarter v Gordon, ft. 121.
    
   Harper, J.

This court concurs in so much of the decree, as relates to the subject of jurisdiction; and the first ground of appeal is therefore overruled.

With respect to the other ground, I am satisfied that the decree was erroneous. The title on which the complainant relied in her bill, was as administratrix, and derived from the bill of sale of 1814. No title was set up under the release, or quit claim, dated in 1820. This was no part of the complainant’s case, and it could not be supposed, that the defendants were prepared to meet it. It is true, it very often happens, that a somewhat different case is made by the proof, from that set forth in the bill; and, in general, I think parties are bound to object to such proof, when it is offered,,or they will be taken to have waived the objection. But in this case, the instrument in question was only incidentally brought out in evidence. It was indorsed on the bill of sale of 1814, and therefore necessarily came to the view of the Court, when thht instrument was offered. I believe it was not relied on, as a distinct and substantive title, or produced for the purpose, and therefore the defendant was not called upon to object.

It is, for these reasons, ordered and decreed, that the order of reference to the commissioner, made in the case, be reversed, and the bill dismissed as to the defendant, James Furse.

Johnson, J., and O’Neall, J., concurred.

Decree modified.  