
    Galt and Garland v. Carter.
    Decided, December 2, 1818.
    1. Devise of Slaves in Trust — inadequate Description-Rights of Creditors — Quaere.—in a devise of a plantation and the slaves upon it, to trustees for the support of the son of the testator, and of the wife and children of that son, by means of the profits thereof; quaere whether the testator’s omitting to insert the names of the slaves, or to describe them in any other manner than as the slaves on the said tract of land, be such a circumstance as would subject them to the claims of creditors?
    2. Chancery Practice — Issue—Truth of Important Point Doubtful — Case at Bar. — Upon a Bill of Injunction to prevent the sale) under execution, of slaves devised in trust, if the defendants alledge that the cestuy que trust was entitled to the slaves by five years possession before the death of the ■ Devisor; and the truth of such allegation be doubtful on the evidence; the Chancellor ought to direct an issue to ascertain that fact. See Marshal v. Thompson, 2 Munf. 412; Bullock v.
    Irvine’s administrators, 4 Munf. 450.
    3. Same-Suit by Trustees — Change of Trustees Pen-dente Lite — Effect. — If the powers of Trustees suing in Chancery be vacated, pending the suit, upon a bill filed against them by their cestuy que trust; and other trustees be appointed; it seems that the Court may change the plaintiff’s after answer filed, upon terms, of the new trustee’s paying the costs already Incurred and giving security for future costs; but it cannot vacate an Injunction bond given by the original trustees, and direct another to be executed, without previous notice to the defendants, that they may shew cause against the motion.
    This was a suit in the Superior Court of Chancery for the Staunton District, brought, originally, in the names of Charles Carter and Edward Carter, trustees for certain “purposes appointed by the Will of Edward Carter deceased, against William Galt and David S. Garland his agent, to prevent by Injunction the sale of certain slaves, devised to the said trustees, which had been taken in execution to satisfy a Judgment, obtained by Galt as a creditor of John C. Carter.
    The clause in the Will creating the trust, was as follows; “Item, I give and bequeath unto my sons Charles Carter and Edward Carter all that part of my tract of land in the County of Amherst which lies on the East side of Piney River, whereon my son John lives, together with the slaves and plantation utensils on the said land; to have and to hold the said Eand, Slaves, Stock and Plantation Utensils, unto the said Charles Carter and Edward Carter and their heirs forever: In Trust, nevertheless, to and for'the following uses and purposes; that is to. say, for the purposes of supporting, with the profits of said estate, my son John Carter and his wife Apphia Carter and their children, during the life of the said John Carter and Apphia Carter and the longest liver of them, and, after their deaths, in trust to be equally divided among the children of the said John and Apphia, then living, and the legal descendants of such asare dead, per stirpes.”
    The slaves taken in execution were a negro woman alledged by the Complainants to have been one of the slaves on the plantation, mentioned in the said clause, at the time of the testator’s death, and several children of her’s born since that time. It appeared that the trustees had never taken possession of the slaves so devised to them, but left them in the possession and under the control of John C. Carter.
    It was contended by Galt and Garland, that, under the Act of Assembly concerning estates holden in trust (Edit, of 1794, 1803 and ’14, c. 90, s. IS,) the slaves in question, (if in fact the woman Jenny belonged to the testator at the time of his death, and was comprehended in the devise,) were subject to the debts of John C. Carter the cestuy que trust. If not, yet the particular debt, in this case, having been contracted for goods necessary “and proper for the support of the said John C. Carter and his wife and children, the slaves were liable in equity to satisfy that debt; especially as John C. Carter was enabled, through the negligence of the trustees, to contract debts, upon the credit he obtained in consequence of having those slaves in possession and holding them as his own. But it was also alledged, that John C. Carter had obtained a complete title to the same slaves, by five years possession before the death of the testator, who, therefore, had no right to devise them.
    A motion to dissolve the Injunction was overruled, and an order made, that an issue be tried, “to ascertain whether the woman Jenny mentioned in the Bill and Answers, was one of the slaves devised,” as aforesaid.
    After this, the Court, by a decree pronounced upon a bill filed in behalf of John C. Carter and wife, and their children, against the plaintiffs in this cause, for the purpose of superseding them as Trustees and substituting another, and upon the answer of the present plaintiffs to that bill, vacated the powers of the said original trustees altogether, and appointed Hill Carter Trustee in their stead; whereupon they, together with the said Hill Carter, moved the Court to admit him as plaintiff in this cause, and to dismiss them out of Court. They also moved the Court for leave to supersede and vacate the Injunction Bond given by one of the said plaintiffs, upon filing with the Clerk of the Court of Amherst County, in lieu of that bond, another injunction bond, with sufficient security: it being the object of the said Hill Carter to use the evidence of the said plaintiffs on the trial of the issue before directed. The Court having heard the arguments of Counsel on both sides, decreed that, on the said Hill Carter’s paying into Court the costs which had been incurred by the defendants, and on giving bond and security in Court, in the penalty of $200, conditioned for paying to the defendants all costs which might thereafter accrue to them, he should be admitted plaintiff in the cause, in lieu of the present plaintiffs; and the issue directed as aforesaid, should be made up between him and the defendants; and also that, upon his giving a new Injunction *bond with sufficient security, and filing the same with the Clerk of the Court of Amherst County, the bond before filed should be vacated, and delivered up to the obligors tobe cancelled. The question of competency, should the present plaintiffs be introduced as witnesses on the trial of the issue, was left open, and the defendants at liberty to offer any legal objection to their testimony.
    On the trial of the issue, before the Superior Court oí Amherst County, the -plaintiff offered the said original plaintiffs and trustees, as witnesses, to which the defendants objected, but the Court overruled the objection and admitted them; whereupon a Bill of exceptions was filed.
    The defendants moved the Court to instruct the Jury, that, if they believed from the evidence that John C. Carter was in peaceable and undisturbed possession of the slave Jenn3r for the space of five years previous to the death of Edward Carter deceased, they ought to find that the said slave Jenny was not devised by the Will of said decedent; which instruction the Court refusing to give, the defendants filed a second bill of exceptions.
    The Jury found that the negro woman Jenny, mentioned in the issue joined, was one of the slaves devised in trust, as before mentioned; and, the verdict being certified, Chancellor Brown made the Injunction perpetual; without prejudice to the right of the defendants to levy their execution on any property, belonging to the said John C. Carter, other than the property held by the plaintiff as Trustee as aforesaid.
    From this decree, the defendants appealed.
    Wickham for the appellants.
    My first objection to the proceedings is founded on a defect in the devise itself, in which the description of the slaves is too uncertain to make it good against creditors. Their names should have been mentioned, that the creditors might know on which slaves to levy executions.
    Such a devise enabled John C. Carter to hold out false colours, to the deception of those who trusted him.
    2.After the Bill and Answers filed, the Court had no *right to change the plaintiffs. The suit should have been dismissed, and a new suit brought. No new bill was filed by Hill Carter. The Court therefore exceeded it’s powers.
    3. The trustees were not competent witnesses. — The whole question turns upon their negligence, in not interfering, but permitting John C. Carter to act as he pleased. They were liable to an action for gross and palpable breach of trust, if Galt recovered; and, therefore, were directly interested to defeat his claim.
    4. The terms of the issue were, perhaps, too narrow, in confining the enquiry to the question whether the slave Jenny was comprehended in the devise in trust. If the issue was not too narrow, the Judge ought to have admitted the evidence offered to shew John C. Carter’s title independent of the Will, 
    
    5.Upon the merits of the case, appearing from the depositions filed, the Chancellor ought not to have made the Injunction perpetual, but should have dismissed the Bill.
    No Counsel appeared for the appellee.
    
      
      See generally, monographic note on “Issue Out of Chancery” appended to Lavell v. Gold, 25 Gratt. 473.
    
    
      
      See monographic note on “Trusts and Trustees” appended to Lee v. Randolph, 2 Hen. and M. 12. The principal case is cited in Armstrong v. Pitts, 13 Gratt. 243.
    
    
      
       Gay v. Moseley, 2 Munf. 543.
    
   JUDGE ROANE

pronounced the following opinion of this Court.

The Court is unwilling, without necessity and on full argument on both sides, and deliberation, to decide a most important question made and occurring in this case; namely, whether the omission of the testator to describe the trust negroes by name, or by any other description than that of being on a certain tract of land, is such a circumstance of negligence or omission, as would, in favour of creditors, subject the said negroes to their claims. On the one hand, it would be easy, (as negroes have names,) to describe them by those names; thus affording a better criterion for the government of creditors than the one before us: it is also clear, that a description of this kind is well calculated to enable a fraudulent donee to cover more property than is actually conveyed under the description. On the other hand, it is questionable, whether a description which is entirely competent to convey the property to the donees, and is very usual, should be held incompetent so far as it respects creditors, on account of its tendency to let in frauds. The question is not without difficulty, and in its consequences, may be ’’'very important. We leave it therefore open for future discussion and decision, when it shall hereafter occur.

In the case before us, the issue directed by the Chancellor, and actually tried, seems restricted, to the fact whether the slave Jenny was one of those on the plantation mentioned in the Will of Edward Carter; and, being thus restricted, the opinion of the Judge who tried that issue, and which rejected evidence tending to shew that John C. Carter had acquired a property in the slave by means of a five years possession, was not erroneous. That enquiry was not submitted to the Jury by the issue. But, that fact being put in issue by the answers; and it being at least doubtful on the evidence, we are of opinion that the issue should have been extended to embrace that enquiry also; and, that there is error in the decree in not having made such extension; it being extremely clear that, if such possession did exist in John C. Carter for five years before his father’s death, it vested the property in him, as to his creditors.

The Court is also of opinion, that, admitting the power of the Court of Chancery to change the plaintiffs in this suit, for the purpose of making them competent witnesses, upon the terms stated in the proceedings, the Injunction bond, previously given in this case, should not have been decreed to be given up and cancelled, and another substituted in it’s room, without notice duly given to the appellants of such intended substitution; in order that they might, if they pleased, shew cause against it; and that, for want of such notice, the said bond was irregularly ordered to be cancelled. The decree is therefore to be reversed, and the cause remanded, that the proceedings may be reformed in these particulars, and the cause proceeded in, to a final decree.  