
    Elton Hodges, trustee, complainant, plaintiff in errror, vs. Ashley Holiday et al., defendants in error.
    [1.] The parties being at issue on a claim case, agreed to, and did submit to the Court, the questions of law arising out of the will and codicil of D. W., as to the interest of D. G. W., under the same, and whether such interest be subject to executions against said D. G. W. The Court having decided such interest to be subject—
    
      Meld, That the claimant was concluded by such decision only as to the question submitted.
    [2.] When a claim is interposed and returned to the Court for trial, the p>roper disposition of it is by a verdict of the jury, unless withdrawn or dismissed by the claimant.
    Claim, in Burke Superior Court. Before Judge Holt, April Term, 1859.
    These were claim cases, in which Holiday and others were plaintiffs in fi. fas, D. G. White, defendant, and Hodges, claimant. There were five executions levied on certain negroes as the property’of defendant White, and claims respectively interposed. When the cases were called for trial, it was ordered, by agreement of parties, that the questions of law in the above stated cases, arising out of the will and codicil of Daniel. White, as to the interest of Daniel G. White, and whether such interest be subject to executions against the said Daniel G. White, be argued and decided in vacation, if not argued and decided at this Term, with leave to either party to except to the decision within the time prescribed by law. At the caption of this order, the cases were staled as “ Ashley Holliday et al. vs. Daniel G. White.”
    Under said rule, after argument, in vacation, at November Term, 1858, the presiding Judge made and delivered the following decision: “ That the testator has by said will and codicil created a mere naked trust, a deposit of the legal title in Henry White, for the use of Daniel G. White, and the law transferring the possession to the use, leaves the property precisely as it was by the will. It is a trust executed, and judgment must be for the plaintiff.”
    At May Term, 1859, the cases were again called in their order for trial; whereupon, "claimant in each of said cases, moved that an issue be made up and submitted to the jury. Plaintiff in fi. fa. objected, and moved that said claim, in each and all of said cases, under the decision aforesaid, be dismissed.
    The Court refused to allow any further proceedings and dismissed said claims, the order of dismissal, describing said cases by the style of “ Samuel A. Verdery, and others.” To which rulings, orders and judgments, counsel for claimant excepted.
    The following is a copy of the codicil to the will of Daniel White, above referred to; viz:
    “I, Daniel White, of said county, being of sound mind and memory, and desirous of making a change of the manner in which the property given to my son Daniel G. White is to vest, do declare, make and ordain this as a codicil to my will heretofore made by me. From the incompetency of my son Daniel G. White, I direct, give, devise and bequeath, all the property given to him in my will, to my son Henry White, as trustee for said Daniel G. White.”
    It was likewise in proof that Hodges had been substituted trustee in lieu of Henry White.
    McKenzie; and Shewmake, for plaintiff in error.
    Millers & Jackson; and Jones & Sturgis, contra.
    
   — Lyon J.

By the Court.

delivering the opinion.

This agreement between the parties to submit the “ questions of law arising out of the will and codicil of Daniel White, as to the interest of Daniel G. White, under said will and codicil, and whether such interest be subject to executions against the said Daniel G. White,” was not one to submit all the questions of law and fact that might be involved in the issue formed, or .to be formed, in these claim cases; at least, such is not the letter of the agreement, and by that the Court must be governed,® although we have no doubt, but that such was the intention of the parties. Whether the executions were valid, subsistingjjand unpaid liens; whether the title to the property claimed is derived under the will, and others that might be mentioned, were all open questions that might have been involved [in the trial, and which had not been submitted, upon which the Court had not passed, and upon which the claimant was entitled to be heard, notwithstanding, that under the’will such title vested in the defendant in fi. fa., as made the property subject to the executions levied. We think, therefore, that the Court below erred in dismissing the claim cases.

The claims should have been submitted to the jury, and if, on the trial, the claimant could show no other title to the property than such as was created in Daniel G. White by the will and codicil of Daniel White, or no other reason to defeat the liens of the execution than the question growing out of a construction of that will, in respect to this property, already decided by the Court, then the property is subject, and so the Court must direct the jury, and so they must find, for this is an adjudicated and settled question by the decision of the Court, on the submission of the same to him? from which no appeal was taken; and so the claimant is concluded by that decision; he cannot go behind it. Still the claimant having interposed the claim, has a right to go to the jury with them if he insists upon it, and will take the risk. This is the mode prescribed by law for the trial and disposition of all claims, and as claimant has not waived this right, that proceeding must be followed by the Court below, unless he voluntarily withdraws- the claim, which he has a right to do, if he chooses, but that is a question for him, and not the Court. If he willfully keeps the claims in Court, after he has been judicially informed as to what the law is, and he has no other excuse for doing so but that; the law has prescribed a penalty in the shape of damages for the delay, which this Court considers altogether ample. So the case must go back with instructions.

Judgment reversed.  