
    
      Camden
    
    Tried before Chancellor James.
    Halloway James, vs. J. Mayrant.
    case r.xssir.
    The estate of the wife being directed by a decretal order of 1795, to be settled to the use of herself and husband, and the formal deeds being not as yet executed ; the court, on application of the parties, and new acquisitions of property, in 1808, decreed the whole to be conveyed in trust for the separate use of the wife ; the formal deeds are executed, and by order of the court, bear date as of the time of the original decree. This settlement shall not operate to bar a creditor of the husband, whose demand arose subsequently to 1795, and prior to the order of 1808 ; but such creditor shall be paid out of the husband’.*! interest in the annual proceeds of the property, as the decree of 1795 imported. And the debt in this case having also arisen from supplies advanced for the benefit of the trust estate, though charged personally to the husband, is, according’ to former'decisions in this court, a d'stinct and valid ground of relief! and the creditor is relieved on both grounds.
    The complainant in bis bill states, that some time previous to the year 1808, ho was a tactor and commission merchant in Charleston, and was employed by John Mayrant to sell the crops of a trust estate, which he sent him for that purpose; that he did sell them ; and furthermore, purchased for and supplied the trust estate with sundry articles, such as were proper and necessary for its support. That lie did these things by the direction and request of John Mayrant, who acted as agent for William Mayrant the trustee, and Mrs. Isabella Mayrant, the cestui quo trust, under authority by them to him delegated for that purpose. That in this manner an account was raised to the amount of S483, for which, with interest from the 5th November 1808, John Mayrant by note promised to pay, “it being for goods for the use of the plantation.??
    
    JUNE, 1815.
    
      The complainant further states, that John Mayrant. is an insolvent debtor, and that he never had any personal credit with him, the ’articles being furnished through his authority, but on the exclusive credit of the trust property : and that he conceives the trust property, Laving received the benefit, bound to make compensation.
    The prayer of the bill is, that out of the profits and proceeds of the trust property, the trustee may be directed by the court to discharge the complainant’s'demands.
    The defendants answer separately.
    John Mayrant admits he employed -complainant as Lis factor, but denies that he acted therein as agent, for either the trustee or cestui que trust. He submits that in 1808, he surrendered for the benefit of his creditors all Lis estate, consisting of upwards of thirty negroes : and. says, that duringthe time complainant was his factor, lie Lad hired negroes, and planted lands not at all connected with the trust property 5 and that complainant’s demand arose previous to the surrender of bis estate.
    Ho further says, that there was no understanding at the time the debt was contracted that the trust property was to be charged with it: — .that be first gave his note for the balance due complainant, and afterwards, at the earnest importunity of complainant renewed it, inserting the words •< for the use of plantation.” He admits some of the articles may have gone to the use of. the trust estate, but says, the trust deed was not executed until some lime, after the account was raised, ile filed a bill, against the executors of Jared Nelson, praying an account of a legacy, which upon hearing was ordered to he settled upon Mrs. Isabella Mayrant, ami not to be subject to his debts. This was about 1795, the execution of this settlement was not perfected till 1808, when it was ox*-dered to be executed in strict settlement, and to take effect from the date of the original decree.
    Ho further says, no power was ever delegated to him by either William Mayrant, the trustee, or Sirs. Isabella Mayrant, the cestui que trust, to charge the trust estate in any manner whatever. He says the origi-aial entries of complainant shew him to be the sole debtor, and that the attempt to iix the debt upon the trust property, was an afterthought of complainant. He says, when he failed in his estate it was very considerable, and more than sufficient to procure credit to a greater extent than he obtained with complainant. He admits he is justly indebted in the sum contained in the note, and .prays to be dismissed with his reasonable cost and ■charges.
    Mrs. Isabella Mayrant answers and says, she-is ignorant of the terms upon which the .supplies were furnished her husband John Mayrant, other than she lias understood from him. Does not .know that any goods were furnished upon the credit of the estate settled upon . her., that were not paid for out of the proceeds of that estate. She never authorized her husband to take up any goods upon its credit, nor delegated to him any agency by which he could charge or encumber it. She cannot admit the justness of complainant’s demand, nor consent with her separate property .to pay the debts of her husband. .She docs not know whether the goods furnished for her separate estate, were not paid for, if any ever were so furnished. She further says, that the account appears to be in the name of her husband, and being a feme covert with only an adequate separate maintenance secured to her, prays the' interposition of the court in her behalf — and prays the benefit of the statute ■of limitations against so stale a demand as the complainant’s and to be dismissed, &c.
    WiHiam Mayrant says he is .a stranger to the things contained in the complainants bill, except to the execution of the deed of trust in favor'of Mrs. Isabella May-rant, in which he is trustee 5 knows nothing of the contract between complainant and John Mayrant for the supplies furnished — never delegated to John Mayrant any agency by which he was authorized to sell or encumber the trust property. He further says, that previous to the surrender of John Mayrant’s propertyribr the benefit of his creditors, he had considerable of his own, which, although afterwards settled in pursuance of an origina] decree of the court of equity, might have been considered as the property of John Mayrant* After the debt was contracted this property was ordered to be set-tied in Strict settlement, and submits this decretal order as a bar to the debts contracted anterior thereto. Submits that no acts of John Mayrant, whether authorized ot not by the cestui que trust, can affect the trust property. Admits that the complainant applied to him for payment, but was told he had not the power to settle the demand. Pleads the statute of limitations against it, and .prays to be dismissed with his costs and charges, &c.
    Gilbert Dinkins, was sworn as a witness. He lived ■on the plantation said to be John Mayrant’s, as an overseer, from F305 till 1809, inclusive. During this time John Mayrant was the only person who directed the witness in the management of the place; he contracted With Witness ; took charge of and sent the crops from the plantation, and had the entire control of every thing thereon. John Mayrant also planted for part of •this time, a little land near his dwelling house — the ne-groes worked there occasionally, sometimes one set of them and sometimes another. The little cotton there raised was sent down to he ginned, without any account being taken of it. It in fact Was, with that raised upon the plantation, ail one crop. He never knew any thing of the property being Mrs. Mayrant’s, until some time after John Mayrant took the benefit of the insolvent •debtor’s act, in 1808, about the first of September of that,year. William Mayrant on Sunday told witness to send certain negroes, naming them, to Sumterville, and have them there at an early hour the next day. He sent off the negroes early, and himself followed them. After arriving at Sumterville they were set up and sold. He was crier — four or five persons only Were present, until the sale was nearly concluded. Except the two last, William Mayrant was the only bidder for them;— and says, some one observed near the. conclusion of the sale, that it was not yet 11 o’clock.
    William G. Richardson was sworn. He received from Dr. Pringle the mortgage under which these ne-gToes were sold; He was present and took an account of Use sale; — few persons were present; — the sale commenced at 10 o’clock. Some others came up just as the sale was concluded. The two negroes sold the last, were bid up to nearly double the amount of any other two. The whole twenty eight brought upwards of five and forty hundred dollars. They were purchased by William Mayrant as trustee for Mrs, Isabella Mayrant, who mortgaged them for the payment of the money :~it was after 11 when the sale concluded. He would not have credited John Mayrant to any extent •,*— and thought 10 o’clock the legal hour of sale.
    Several other persons being sworn, said the sale was before 11 o’clock.
    The complainant produced several letters of John Mayrant, dated in 1805, 1806 and 18Of, which shewed him to have the entire control and disposal of the crops, and the sole management of every thing relating to the planting interest. The complainant also produced certified copies of the decretal order, made 28th of March, 1795, settling a legacy recovered by a suit in court, upon' Mrs. Isabella Mayrant, Capt. John Mayrant, and their issue, under the direction of the master; and also of the decretal order made 28th of April 1808, directing John Mayrant to execute a deed of settlement, to he dated as of the 26th March, 1794, to and for the separate use and benefit of Mrs, Isabella Mayrant, during her life, and from and after her death, to and for the joint and equal use and benefit of the children of the said Isabella and captain John Mayrant, equally to be divided among them, and to comprehend all the negroes, (except those which had been sold for land,) that were the subject of the legacy, with their issue and proceeds.
    After argument, chancellor James delivered the following decree:
    The complainant alleges in his bill, that he was employed by the defendant, John Mayrant, as a factor and commission merchant, in the business of a trust estate, of which the other two defendants are respectively, Wjjj. Mayrant tho trustee, and Isabella Mayrant, wife of John Mayrant, a cestui que trust. That as a com mission merchant he supplied the trust estate, upon its own credit exclusively, with articles to the amount of $483, with interest. That the said John Mayrant is insolvent, and acted in the said business only as agent for the said estate.
    The above contains a statement of all that is relevant irr the bill of complainant; but a ground taken in the-argument, renders it necessary to state a few matters extracted from the exhibits.
    The - property settled was recovered by John May-rant, in right of his wife, in the Court of Equity, and as is usual in that court, when property can only be recovered by its aid, it was ordered to be settled upon her. The de-cretal order ivas made on the 28th March 1795, and among other matters directs as follows: “ That the legacy recovered from Mathew Neilson’s estate, be settled on Mrs. Isabella Mayrant, and Capt. John Mayrant, and their issue, under the direction of the master. Also, that the sum of S3Zl. old currency, being the balance due on the statement of the accounts from Jared Neilson’s estate, be paid Capt. Jolin Mayrant, out of such funds as the court may direct.” Upon this order, no settlement was made, until in April, 1808, when an ex parte applica-. tion was made in behalf of Mrs. Mayrant, by her next friend; and a separate estate ivas ordered to be settled upon her by the Court of Equity. That the present debt was originally contracted between the time of the firsij and second order above mentioned.
    The defendants, John Mayrant, his wife Isabella Mayrant, and the trustee William Mayrant, have all answered separately; the two last plead the act of limitations, all of them deny that the articles mentioned by complainant were furnished on the credits of the trust estate, and they aver that J. Mayrant was not employed as agent in the business of that estate.
    Thus the parties are at issue upon the point, whether the goods were furnished upon the credit of the trust estate ? To prove his allegations, which are all denied, the complainant has produced certain titles of John May-rant, directed to him: but these make no mention of any trust estate or agency; and only shew that John Mayrant in bis own name, requested that certain articles should be sent to him, which were sent agreeably to his request. The letters shew that the credit was given to John May-rant, and not to the trust estate, and therefore operate against the claim of complainant. But he also relies upon the wording of the note of J. Mayrant, given for this debt, which expresses that it was “ for value received in goods for the use of the plantation.” This reasoning has hut little weight, for since he has shewn no authority from the trustees to furnish the goods, and has failed to prove that they were purchased on the credit of the trust estate, no form of words which John Mayrant could use would be binding.
    The only claim made in the bill was upon the property settled; but at the hearing, the ingenuity of counsel has suggested other points, so as to make a serious charge by argument, if not by bill. The whole of .the attempt to make out the sale of the negroes fraudulent is of this cast; for there is not a word said about it in the bill. However there was one ground taken, which I think it incumbent upon me to notice, namely that by the decretal order of the court of 1795, Mrs. Mayrant cannot claim a separate' estate, and that there is a life estate in the husband • subject to the claims of this creditor, whose demand arose prior to the second order of 1808. I confess there is much difficulty upon this question, and' it has engaged much of my attention. The power exercised by the court in directing settlements, appears to be unsettled by any acts of the legislature upon this subject, because the orders made are of such a public nature, that all men about to give credit are bound to take notice of them. The Court of Equity has certainly the power to make a construction of its first order, so as to bind creditors subsequent to the second one, but as to creditors prior to the last one, it seems that the construction must be left open to other courts, unless the case in equity was in the first instance retained for further decision. Then the questions arc, what was the intention of the first order of 1795, and ivas the case then concluded ? First, — it was intended to provide for Mrs. Mayrant and her children. But if such provision was made independent of her husband; the intention of the court would be frustrated. The legacy was vested in negroes, and from the nature of that property, if he was left to dispose of it during life, at pleasure, little might ever come to the wife and children. Secondly, — The intention was to provide for the children of the marriage. The legacy recovered was decreed to be settled upon Mrs. Mayrant, Cap& John Mayrant, and their issue. Now the word issue is a word of purchase, and strongly implies that the court intended a strict settlement. But again, in the third place, the legacy was to be settled “ under the direction of the master.” And further, “ the balance 'due from Jared Neilson’s estate was to be paid to John Mayrant out of such funds as the court might direct.” Then from the wording of this part of the order, it is plain that the case was left sub judice, and the court meant to exercise a further control over it. They have explained and enlarged thé meaning of the former by the latter order, as they would have done articles by a settlement. It has been fashioned according to the original intent, by directing a separate estate; which in this short hand way, and without filing a bill of review, cannot be subjected to the claim of complainant. It was strongly urged at the hearing, 'that the trust estate received the benefit of the supplies, and therefore, ought to make compensation. Had they been furnished through the proper authority, the conclusion would be true; admit it without adding this fact to the premises, ami most marriage settlements will become nul-lities. Although the doctrine bo w7ell settled, let us briefly examine their merits, and ascertain what would be their loss. When a husband cannot obtain possession of his wife’s property but by the aid of this court, it is an exclusive branch of its jurisdiction to direct a provision for her and her children. The maintenance of the wife may be of importance in many instances, but to provide a certain fund for the education of the children, is in every view a most serious con-mm. When the property moves from the wife, it is but reasonable, that she should be placed as much as possible beyond the reach of the misfortunes of the husband; the children too may often he innocent sufferers. When such a prevision is made in a public manner, and according to authorized forms, no injustice can he done the creditor, because he may deal only for cash if he chooses : or before he parts from his goods, he should be vigilant and ■see that he is secure. Settlements before marriage are also founded upon the same good reasons ; and besides have the sanction ofimmemorial usage. They have had the approbation not only of the enlightened, hut also of the savage nations. We have derived them from the British laws ; they borrowed them from tiio Roman ; and it is said, with great appearance of truth, that Justinian received and adopted the principle of them into the civil code, from the ancient Cauls and Germans. At present, accompanied by the civil law, this principle obtains m a great part of modern Europe. Tims, such settlements appear to he at once reasonable, and to have the sanction of the most enlightened past, of the human race. Then to permit them to be infringed or evaded, would be contrary to the duty of this court. But to leave this one at the discretion of the husband, and to suffer him at pleasure to make his wife’s fortune liable for debts, would be to defeat the very end for which it was created. It can be made liable only through proper channels, and by prescribed forms. The complainant has not approached it through these, and therefore he is remediless. This case may be a hard one, but a general good is not to give way to private convenience.
    Therefore, it is decreed, that the bill of the complainant be dismissed with costs.
    W. D. James-.
    The complainant appealed on the following grounds-.
    First, — That in point of fact it was established by proof at the trial, that when complainant’s debt was raised, John Mayrant was either agent for trustee or owner of the property, which was afterwards decreed in strict settlement, and could* at any rate by a contract bor benefit, bind that property.
    Second, — -That the property which had received, p¡.ov:ous the strict settlement of 1808, the benefit of supplies furnished by the complainant, and through John Mayrant, the only authority at that time recognized as the proper one, ought now to make compensation.
    Third, — ’That the bill claimed only against the property settled in trust, in 1808, yet when the claim arises on a contract for the support of that property before, the settlement, the court will notice the means by which that settlement was procured when given in evidence, and leave the parties to the contract in the same relation to each other after the settlement, they were in before it.
    Fourth, — That after the decree of 1795, executing the estates therein ordered, those estates were no longer under judicial control; the intent of the court being declared in the words of the judicial order of 1795, could notin 1808, become the subject of implication.
    Fifth, — That the meaning of the decree of 1795, might be explained and enlarged in 1808, in an cx parte case, yet such explanation and enlargement of the latent intention in the first decree, are not to defeat the rights of creditors, by taking away a particular estate given by that decree, on which those rights have in the interim attached.
    A. Silliman, Complainant’s Solicitor.
    The appeal was heard by the.chancellors Dcsaussurc, Walies, James and Thompson. But the judges being divided in opinion, the court reserved the decision of the case, in order to have the benefit of the judgment of chancellor G-aillard, who was detained by illness.
    Afterwards the judgment of the court was delivered as,follows:
    The complainant seeks to subject to the payment of his debt the profits of a trust estate. The trusts of which were created and declared by decretal orders of the Court of Equity in 1794 and 1795.
    The first was made on the 28th of March 1794, Mayrant and wife against Davis, executor of Jared Ne.l-son. In this case the court confirmed the report of the master in some matters, not necessary to be noticed here, •and ordered that on a final report of the master, whatever balance might be found due to Mr. Mayrant in right of his wife,' should be considered as settled on his wife in manner as should he directed by the court. On the 28th of March, 1795, the balance due being ascertained, the court ordered that the same should be settled on Mrs. Isabella Mayrant, Capt. John Mayrant and their issue, under the direction of the master.
    On the cx parte application of Mrs. Mayrant, by 'her next friend William Mayrant, on the 28th of April 1808, the court ordered the property which-had been purchased with the above balance to be settled. The order runs thus: “ It is ordered and decreed that the said John Mayvant do forwith execute a settlement, to be dated as of the 26th day of March, 1794, pursuant to the intent of the court jn the said decretal order, that is to say, to and for‘the separate use and benefit oF the said Isabella May-rant, during her life; avid from and after ’her death, to anti for the joint and equal use and benefit of the children of the said Isabella and John Mayrant, equally to be divided 'among them; that the said settlement do comprehend all the negroes that were purchased under the said decree, with tlveir issue and proceeds, save only those particular negroes that have, with the assent of the said Isabella Mayrant, been applied to the purchase of the tract of land aforesaid, from John Greening; and as to that land, it is further ordered and decreed, that William. Mayrant, who petitions as the trustee and next friend of the said Isabella Mayrant, do also execute a declaration of trust, to bear date the 1st of January 1795, the time when the negroes were appropriated and the land purchased, to the same uses, intents and purposes before prescribed ;[ and that the master do cause the necessary deeds to'be prepared.; and that Willíám Mayrant bo named a trustee in the settlement.’5 The necessary deeds were prepared and executed. The settlement of the ne-. groes on the 14th of Juno 1808, hut bearing date on the 26th of March 1794; and the declaration of trust of the plantation, on the 14th of June, 18Q8, but> bearing date on the 1st of Januaiy 1795. The debt to Mr. James was contracted after the date of the t|ecrctai order in March 1795, and before the order of the 14th of Juno 1808. He was a factor in Charleston, to whom the crops of the estate were sent, and who used to supply the estate with such articles as Mr. John May-* rant gave orders for from time to time. On a settlement of accounts a balance of $483 was found to be due to Mr. James, which Mr. John Mayrant, one of the cestui que trusts, gave his note for, on the 24th of April 1813, acknowledging in it, that it was for goods for the plantation.
    It is contended that the trust is not liable for this debt
    First, — Because the trust estate is settled to the separate use of Mrs. Mayrant.
    Second, — Because Mr. John Mayrant had no authority to bind the trust estate. The decretal order of the 28th of March 1795, directing the settlement to be made on Mrs. and Mr. Mayrant and their issue, vested in Mr. Mayrant the profits ofthe estate, during the joint lives of Mrs. Mayrant and himself. In the case of Barrett and Barrett, it was decided that the husband supporting the expenses ofthe household was entitled to the whole of the profits of the trust estate, settled jointly on himself and his wife. This was a case between husband and wife, and not between them and creditors. Under such a settlement the creditors of the husband would not be allowed t.o deprive the wife of her maintenance ; and the court would apportion the profits to prevent the object ofthe settlement from being defeated. The court would do so in this case, but that tbe note was given for things necessary for the trust estate, and of which it had the benefit. This case falls then within the principle of the case of Cater and Eve-leigh. Some of the articles for which the note was given, it is said, were not furnished for the trust estate; hut upon looking into Mr. James’ account, a considerable part of it appears to have been furnished for it, which renders a discrimination unnecessary; because Mayrant 53 himself liable to the extent of his interest in the profits* to subject which'to this debt, it was necessary to institute a suit in this court, the estate being a trust one, and the profits accruing yearly. The order of 1808, does aot shew that Mayrant is not entitled to any part of the •profits of the trust estate. It directs a settlement to be made according to the intention of the court in their order of March 1794, and that the deeds should bear that date. But what did the court intend in tlie order of March 1794 ? That the property should be settled on Mrs. Mayrant, in manner as should be directed by the court, and the manner was directed by the court, on the 28th of March, in the year after, viz. on Mrs. Isabella Mayrant, and Capt. John Mayrant, and their issue, under the direction of the master. The intention of courts is to be collected from their acts. Now the order of March 1795, clearly fixes the interests of the cestui que trust; and if reference had been had to the proceedings of the court by any person desirous of knowing whether any part of the estate was settled on Mr. Mayrant, lie would have seen that he had a life estate in the profits; and that the settlement which was to he made under the direction of the master, did not certainly prevent the act of the court from being complete. It was no longer sub judice. The. order of 1808, could not impair the rights of those who became creditors of Mr. Mayrant,- between that time and the date of the order in March 1795; for nothing is said in the order of 1808, about the rights of creditors, who were not even before the court, and the court does not decide on the rights of parties not before them. Unless we give to the’order-of 1808 a construction not affecting the rights of creditors, the order of March 1795, was calculated to deceive persons the most cautious and wary, and more likely to- deceive in proportion to the caution used. As between Mr. Mayrant and Ms wife, the court could mould and fashion the trusts as they pleased; but those with whom,Mr. Mayrant entered into contracts subsequent to the order of March 1795, and prior to the order of 1808, acquired a general Hen on hie estate; their rights are of a more stubborn nature tlisn trusts. They are legal rights and remain unimpaired-'
    Theodore Gait,yard.
    We concur in this Opinion.
    Henry W. Desaussuee;
    W. THOMPSON.
    A majority of the court being of opinion that the trust estate of Mr. and Mrs. John Mayrant ought to be- ■ subjected to the debt of the complainant, Halloway James,
    It is ordered and adjudged that the trustee do account with the complainant, before the commissioner, for the ■ annua! income of the trust estate until the debt be paid. Costs to be paid by the defendants.
    Henry W. Desaussuee.
    Theodore Gaiuaeu.
    W. Thompson.
   Judges Waties and James

differing in opinion from their brethren, delivered the following opinions :

I think the decree of the Circuit Court ought to b® 'affirmed, but on different grounds from those on which the decree is founded.

This court cannot, it appears to me, make the trust estate of Mrs. Mayrant liable for the debts of her husband, without setting aside the decretal order of the Court of Equity in 1808. But that court was then su--premc, and its decrees are not. now under the control of this court* or.subject even to' a review. If, however, it is held that-the decretal order of 1795 is now operative, so as to give a life estate to Mr. Mayrant in the property directed to be settled, then the order of 1808 will not have the effect which I think it was intended to have.- — - There were then two orders on the subject oh record, which were inconsistent with each other; one entered on the 26th March 1794, declaring that the property should be considered as settled on the wife aionc; the other on the 28th March 1795, ordering the settlement to-be made on the husband and wife and their issue. The court being cal-let! upon in 1808 to give the true construction to thesd contradictory orders, made the following order: “Upon readingthe petition'in tlie case, &c. and the decretal orders made therein, it is ordered that the said John Mayrant do ■ forthwith execute a settlement to be dated as of the 26th March 1794, pursuant to the intent of the court in the said decretal order, that is to say, to the separate use and benefit of the said Isabella Mayrant, during her life, and from and after her death to the joint use and be-’ hefit of the children of the said Isabella and John, equally to be divided among them.” I think it evident from this order that it was intended to supercede the order of 1795. which gave a life estate to Mr. Mayrant, to annul that ■ ■order as an erroneous entry in this respect, and to carry into execution the one of 1794, which gave a separate estateto Mrs. Mayrant. ' This intention appears to me so obvious, that I have no doubt that if the present demand had been then before .the Court, the trust estate would not' have been made liable to it ; for if the order of 1795, was considered a nullity as to the settlement, it could' vest no interest in Mr. Mayrant, nor could any rights accrue under, it to his creditors; ami the court by directing the settlement .to bear date on the 26th of March 1794, has ‘ expressly given to it a retrospective operation from that date. This view is-much strengthened by the fact, that-in the original suit for the recovery of the property of which the trust estate consists, the executor prayed that the same might be settled to the separate use of Mrs.' Mayrant. The first order made, (that of 1794,) was in conformity thereto; and the order of 1808 was a confirmation of that order, for this is distinctly expressed. And it was the duty of the court to do this; for although some creditor of the husband might have trusted to the entry of 1795, (winch however is not pretended in this case,)-yet the court was bound to protect the interest of the wife against an erroneous entry, and to give her the' benefit of its original order in her favor. But whether it was proper to do this or not, is a question not open to the examination of this Court. It was the act of a court of supreme and final jurisdiction ; and as such ought to he conclusive.

As it does not appear to me that Mr. Mayrant eon* tracted with the complainant as the agent of the trustee., or that the articles went to the use of the trust estate, I am therefore of opinion that the trust estate ought not to be made liable to the complainant’s demand.

Thomas WaTieb.

Certain facts have been developed since the hearing below, which in my mind add considerable weight to the opinion given there. These were brought to view first at the discussion here, and are as follows :

In the case in which John Mayrant recovered his wife’s portion, namely, that of the executor of Jared Nelson, ads. J. Mayrant and wife filed the 25th of March 1791, the answer concludes by praying, that if any property should be decreed to the complainants, it should be secured for the complainant Isabella and her issue, free from the control and intermeddling of the complainant John, and not subject to his debts and incumbrances. That at the time this answer was put in, the executor of Jared Nelson stood in loco parentis to the said Isabella, who was an orphan. That afterwards on the 26th of March 1794, the court decreed to the said Isabella the legacy due her from Matthew Nelson’s estate, of whom Jared was an executor, and concluded by ordering whatever balance maybe found due Mr. Mayrant in right of Ms wife, shall be considered as settled upon said wife, in manner as shall be dmected by the court. These .were the new facts.

Again by the order of the 28th of March 1795, mentioned in my decree in the circuit court, the legacy or portion was fixed at 1S18L Os. 2d. “ to be satisfied out of the proceeds and sales of Matthew Nelson’s estate, and that the same be settled on Mrs. Isabella Mayrant and Captain.John Mayrant and their issue, under the direction of the master.”

Upon these orders no settlement was made, there being no trastee appointed to carry it into effect, until April 1808, when an application ■ as made in behalf of Mrs. Mayrant by her next friend, and it was decreed, by the court, that the said John Mayrant do forthwith execute a settlement to be dated as of the 24th of March 1794, pursuant to the intent of the court, in the said decretal order: that is to say, to and for the separate use and be-nefitof the said Isabella Mayrant, during her life, and from and after her death to and for the joint and equal use and benefit of tho children of the said Isabella and John Mayrant, equally to be divided between them, and so forth: by which last decree the court passed entirely over the decretal order of 1795, as forming no part of their original intent, and as entered by mistake of the register. Thus what ought to have been done in 1794, was done in 1808, in conformity with a common maxim and the common practice of the court.

But the claim of complainant arose between the date of the second and third decretal orders, and they now contend,

First, — That there is a life estate in John Mayrant, subject to this demand of the creditor, by virtue of tho order of 1795.

Second, — That the court under the former establish* ment, had no power to decree a separate estate to tho wife, after the order of 1795, which was final.

Upon the first ground let us enquire, what was the intention of the court, by the first order of 1794 ? Mrs. Mayrant was an orphan, and the only person who stood in the place of a parent to her, had prayed that the portion she was about to receive, should be secured to her and her issue in strict settlement. This was a reasonable prayer $ for even without such a one, and whei'e, as was the case here, a husband cannot come at his wife’s portion but through the aid of this court, a settlement is> always ordered. The settlement prayed for, was a separate estate in the wife, and the court no doubt, intended to make it conformable to the prayer; for it said in the first order of 1794, whatever balance may be found due, shall be considered as settled upon tho said wife. Here the wife alone is mentioned; her rights alone are recognized ; the husband is not even named 5 and the case was directed to remain sub judicc.

The intention is plain on the first order; and I do not see that it is departed from even in the second one of j although it was made no part of the case by the final decree of 1808.

That a separate estate in the wife was originally intended, is sufficiently evident: Now what reason could have induced the court in 1795 to alter this intention ? John Mayrant was largely indebted at the time the answer-was filed, and the order of 1794 was made : — in 1795, lie was still greatly in debt; and he remains • so at the present time. The prayer was made, and the order of 1794, was enacted, because he was so indebted; and to secure a portion to the ward of the court. Then where was the reason in 1795, for the court to depart from their original intention ? There was noneand before a rea - son for such departure can be shewn, it must be presumed that the coisrt acted without any at all.

< But it- is said, that agreeably to the construction of the order in 1795, and the case of Barrett and Barrett, there was no separate estate.

I grant that since the case mentioned has been decided, the construction of this order would warrant the decision, that a life estate in J. Mayrant was intended by the same; but that is not conclusive as to the intention . in this case, which arose before the doctrine was settled. The word issue is used both in the prayer and order of 1795 ; and certainty was intended to confine the settlement. ■

But it has been said, {that although the doctrine as to separate estates had not been settled before the decision in Barrett and Barrett, yet the cases existed in the books upon which that doctrine is founded.

Nothing can be more fallacious than such reasoning, to shew the general intent. Those cases, although tobe found in the books, had never been expounded and submitted to the solemn adjudication of this court; and even when that took place, the principle was not readily settled, for it was at last established by the Court of Appeals, contrary to the opinion of the Circuit Court.— Then as the case passed sub silentio in the former ecu A and might have been left very much to the wording of the register, such a mistake of such an abstruse doctrine, and contrary to the real intent, might very well have crept into the minutes of the proceedings. For these reasons, I think that the former court intended a strict settlement originally, and never departed virtually there-. from.

I come now to the second ground : Had the court the power after the order of 1795, and by their order of 1808, when the rights of creditors had intervened, to decree a separate estate in Mrs, Mayrant ?

No one can deny to that court the power to rehear, review, and to correct their proceedings. And they often exercised these powers, not only while suits were pending, hut also after decrees, purporting to be final, were delivered. But in the present case, there was not even a final decree, under the order of 1795; for it remained for the master to report a settlement, which the court might have altered or modified.

But the meritorious rights of creditors are objected ?

I answer that the rights of the wife, who brought a portion to her husband, were more meritorious, and are under certain forms preferred by law. The general doctrine is, that marriage is a valuable consideration, when the wife brings with her a portion. — Roberts on Fraud. Cont. 105. And according to the authorities cited by defendant’s counsel, settlements after marriage have been decided to bo good against general creditors; although founded only upon a parol promise before marriage. Even a promise of this kind, made by an infant before marriage, to settle the estate when of age, was held a sufficient consideration to support the settlement after marriage, made in pursuance of such promise, although the infant was not compellable by law to fulfil the same. The reasons upon which these decisions are founded, is that the wife’s portion was the subject of the settlement, which is deemed a valuable consideration — Roberts on Fraud. Cont. 241, 2, 3, and 4.

Upon this subject the court looks much to the purity of intention of the donor, and tiiat the thing agreed to be done, and the thing performed,'should exhibit so plain a correspondence, as to unite them in a derivation from the g£une original motive. Now there was marriage and a portion here, which when united appear to form a double consideration, of a higher nature than that of creditors:’ besides, the court in this case, stood in theplacc of donor, and I suppose the purity of its motive will hardly be called in question.

But further, it has been said, that this creditor upon a search made, ought to have found sufficient notice upon the decretal order of 1795, to shew him that there was a separate estate.

" It is evident that when ho gave the credit he never had sought for the order, and never thought of a trust estate, or a life estate in John Mayrant, until he filed his bill; for the whole of the charges in his account are made against John Mayrant. But .supposing him to have looked into the order, and even to have employed counsel, still for the reasons I have before stated, the point would ■ remain very doubtful ■: he would sec that by giving the credit he might risk a law suit, and perhaps eventually lose his money. Then, by giving the credit he did a very imprudent act, and ought not to he favored here.

It.lias also been said, that the articles furnished were, of such a nature, that they ffiust have been for the the trust estate. This was not made certain, or at least not more so, than in the case of Ewing and Smith. At the time John Mayrant had hired negroes, and worked a "certain number of his own slaves, upon a separate plantation ; about$4,@00 of the account had been paid, and a small balance of g483 only remained unpaid; but ■a small part of the articles comparatively, were for plantation use; and the payment made would more than cover them all.

But it has been further urged, that John Mayrant was the agent for the trust estate. Now, this ought to have been proved; — there was no testimony but that of Qil^ert Dinkins to prove it j and tire answers of both the trustee and cestui que trust deny the charge. Yet after all it is evident- that the Court of Equity, under the for-nicr establishment, which settled this whole matter by the decretal order of 1808, was vested with as ample powers as the present court. According to law, its records ought to be conclusive evidence. The determination of a court of competent jurisdiction, whether of record or not of redord, is also conclusive. In Ncw-York the supremo court will not open a judgment, so as to allow money to be recovered, which was paid under a decision of a competent court, although the plaintiff had paid the money before, and could not find the receipt at the time before, but afterwards discovered it. — 2 Espin.~ 436, New-York edition. Now this was in fact to determine, that they could not look into the merits of the judgment; and neither ought this court, except to review, or upon a charge of its being obtained by fraud. But further, this court has determined that they would not even entertain a bill to review the decisions of the former court — See the case of Lindsey vs. Hampton. They said the decisions of the former court stood upon sacred ground. Then if the ground which the decree of 1808 has covered, be indeed sacred, it may be assimilated to a field well enclosed on all sides, into which this court cannot penetrate unless by a forcible entry.

Silliman and Blaading for Complainant. — Miller • for defendants.

W. D. James.  