
    JOHN WITHERSPOON & AL. vs. ABNER CARMICHAEL.
    A bill, founded upon an allegation of fraud, must not merely insinuate the fraud, but must charge it in positive and direct terms ; otherwise the plaintiff will not be permitted to prove it, and, of course, can have no relief.
    Appeal from an interlocuiory order of the Court of Equity of Wilkes County, at the Spring Term 1848, his Honor Judge Caldwell, presiding.
    The bill was filed by John Witherspoon and William p. Witherspoon against Abner Carmichael, and set forth, in substance, that James W. Dula and certain other infants, by théir guardian, Nelson A. Strange, and othér complainants' of full áge, filed théir bill of complaint against the present plaintiff, William F, Witherspoon, in. the Court of Equity for Wilkes County, and obtained a de'créé against him at April Term 1839 for $3544 -84-100, upon which executions issued from time to time, which went Info the hands of the defendant, Who Was then the sheriff of Wilkes.County; that the plaintiff William, made many payments on thé said executions during the years 1840, 1811, and 1845, making in the whole the sum of $3823 15-100, for which he had taken receipts from the said defendant, as sheriff; that, besides these sums, the plaintiff, William, paid to the defendant, in the summer of 1841, thé sum ol $393 16-100 in the following manner, to' wit: the said plaintiff* was indebted to the Bank of thé State at Raleigh, in the sum of $1015 principal, which, with interest and the costs of collecting the same, amounted to $1084 38-100, and that, for the purpose of paying thé same, as well as the residue unpaid of the decree aforesaid, he had a note discounted at the Branch Of the Bank óf Cape Fear at Salisbury for $1500, all of the probeeds of which, except the sum of ten dollars, went into the hands of the defendant, Who paid off therewith the debt due the Bank of the State, and the costs thereof,'and, by express agreement, Was to apply the remainder of the pro-e'eeds of the said note to the payment of the deóree áforesaid, but the defendant had not done-éo, and bad in.no Way accounted for the same;.that the plaintiff, William; had taken a receipt from the' defendant for the money paid on the bank debt,but had neglected to take one for the residue, of the money, received'by the defendant from the Bank at Salishury. arid the same remained in the hands of the defendant entirely unaccounted’ for ;- and that; besides this, the defendant had collected’ for the* plkihtifF; William, on a judgment against one Thomas K; JU*>vs; the sum of about $60, which he had also failed to account for. The Bill further charged, that the defendant, in order to satisfy the residue, which, he alleged, was Unpaid on the decree aforesaid, levied the execution, which he had in his hands, in the year 1845, on several slaves of the plaintiff, William, and'sold two of them for the sum of $683, the said plaintiff contending at the.time, that the said decree had been fully paid off; that the defendant was about to sell others of the said slaves, to prevent which, the plaintiff, William, entered into a written contract with the defendant, by which it was agreed, * that Col. Anderson Mitchell should examine the papers in the case N. A. Strange Guard v. W. P. Witherspoon, the judgment, execution and receipts, and ascertain what ballance, if any, there is yet unpaid, principal, or interest, or cost,” and, if any should be found unpaid, the said plaintiff agreed to pay it without delay, and, if the decree should be ascertained to have been overpaid, then the defendant agreed to refund the overplus, both parties mutually agreeing to abide by the award of the said Mitchell. The bill then charged, that the said Mitchell examined the papers in the case referred to him, and decided, that there remained due on the said decree the sum of $361 45-100, and rendered his award accordingly ; that, in making this award, the said arbitrator refused to take jnto consideration any payment, for which the plaintiff, William, had no written receipts, founding his refusal Upon the exact terms of the written agreement, which, the bill alleged, had been artfully drawn by a son in law of the defendant; whereas the bill charged, that, at the time, when the said agreement was entered into, it was expressly mentioned -ajnd understood by the parties, that the money, received by the defendant from the Bank at Salisbury, was to be taken into the account, and the bill alleged, that the said matter was brought distinctly to the notice of the said arbitrator, but he-refused to allow it, whether because ho was of opinion, that he was precluded from doing so by the express terms of the written agreement, or that the plaintiff, William, might have his remedy upon the official bond of the defendant, as sheriff, for the year when the money was received by him ; but the bill alleged, that the plaintiff, William, could have no remedy at law on the said sheriff’s bond for the year 1840, because he was one of the sureties for that year, and that the said arbitrator was mistaken in both the points decided by him. The bill charged further, that the defendant instituted a suit against the plaintiff, John, on the said award, in the Superior Court of Wilkes County, and, at the fall term 1846, recovered a judgment against him for $425, for which he was about to take out execution. The bill then charged, that the defendant was entirely insolvent, and that, if he were permitted to enforce the collection of the said judgment from the plaintiff, William, it would be an entire loss to the latter, because the execution in the defendant’s hands on the decree aforesaid had been overpaid to the amount of seven-hundred dollars and more. The bill prayed for an in,-, junction to restrain the collection of the judgmentagainsfr the plaintiff, John, and that the defendant might be compelled to account for and repay to the plaintiff, William, the amount, which had been overpaid towards the decree aforesaid. The injunction was granted as prayed ' and the defendant filed an answerto the bill,wherein he admitted, that the wards of Nelson A. Strange and others1 had obtained a decree against the plaintiff, William, upon which execution had issued from time to time and come to the hands of the defendant, as sheriff of Wilkes Coun-ty. and that the plaintiff, William, had made many payments thereon, for which the defendant had given him re* ceipts. as stated in the bill. The answer also admits that the defendant received the proceeds of the note of the plain-tiff William, discounted by the Branch of the Bank of Cape.' Fear at Salisbury, and that he paid therewith the debt, due from the said plaintiff to the Bank of the State at Raleigh, and that for the amount so applied he had given the said plaintiff a receipt. It also admitted the collection by the defendant of the judgment in favor of the plaintiff, William, against Laws, but it denied that the sums remaining, of the money received of the Bank at Salisbury, after paying the debt dup the bank at Raleigh, and the amount collected on the judgment against the said Laws, have ever been received by the defendant, upon any understanding or agreement with the plaintiff’, William, that it should be applied towards the payment of the executions on the aforesaid decree. On the contrary it is averred, that those sums of money had been appropriated for the use of the plaintiff, William, and had been fully accounted for to him. The answer, after much prolixity and circumlocution, admitted, that the defendant could not then state how the whole of the said sums had been applied to the use of the plaintiff, William, but it specified the payment to him of $130 75-100, for which the defendant had his written receipt, which expressed to be for a part of the money received from the Bank at Salisbury, and the defendant had also taken a note given by the plaintiff, William, to Council and Bower for $100 as cash. The reasons assigned in the answer, why the defendant could not account for the residue of the said sum of money were, that he had various other executions against the plaintiff, William, besides those above specified, and, in consequence thereof, had had many dealings with him in the receipt and payment of money, and that a considerable length of time had elapsed since the money from the Bank at Salisbury had come to his hands. The answer then admitted, that the defendant and plaintiff, John, entered into the written agreement for referring the matters of difference between the defendant and the plaintiff', William, to the arbitration of Col, Anderson Mitchell, and that he had made an award thereon, as stated in the bill, but it denied expressly, that the said agreement was artfully drawn up, to prevent the said arbitrator from taking into consideration any payment made by the said William, for which he had no written receipt. On the contrary, it is averred, that the said, agreement was written by the defendant’s son-in-law, at the request of both parties, was drawn according to their instructions and was fully understood by them,and that, by the said agreement, the said arbitrator was not prevented from passing upon payments of any kind, whether written or otherwise, made by the said William, on the executions aforesaid, and that, in fact, the said arbitrator did consider of the payments, alleged to have been made, out of the monies received by the defendant from the Bank at Salisbury and from the judgment against Laws, and rejected them, not because the plaintiff, William, had no written receipts for them, but because he was satisfied, that they had been otherwise accounted for to the said plaintiff. The answer admitted that the defendant had obtained judgment at law against the plaintiff, John, and insisted, that the submission to arbitration, made by the defendant and the plaintiff, John, was fair, and the award thereon legal and proper, and that it was final and conclusive between the parties to it, and that the plaintiff ought not to be permitted to allege any thing against it. Upon the filing of the answer, a motion to dissolve the injunction was made by the defendant, and sustained by the Court, and the plaintiffs prayed for and were allowed an appeal to the Supreme Court.
    No counsel for the plaintiffs.
    
      Craige, for the defendant.
   Battle, J.

The motion to dissolve the injunction i.u. this ease was properly granted, and that for two verysufficient reasons. The first, is, that all the material allegations, upon which the plaintiffs found their claim for- relief, are denied by the defendant; and the second is, that, taking the allegations of the bill to be true, they are not sufficient to entitle the plaintiffs to the relief, which they seek. The facts stated in the bill are, in substance, that the plaintiff, William, was entitled to certain credits for payments, which the defendant, as sherifFof Wilkes County, had in his hands against him ; that the defendant re* iused to allow these credits, and that, to settle the difficulty, which existed in relation thereto, between the said plaintiff and the defendant, the plaintiff, John, and the defendant entered into a written agreement to submit the matter in dispute to the arbitration of a gentleman selected by them and to abide by his award. This agreement, the plaintiff alleged, was artfully written by a son-in-law of the defendant, so as to preclude the arbitrator from taking into consideration, and allowing, some of the payments made by the plaintiff, William, beeause he had no written receipts for them, and that the arbitrator had in fact rejected them on that account.

The answer of the defendant, though containing much irrelevant matter, and consisting much more of argument than of blear and distinct statements, denies positively all these allegations, and, for this reason alone, the injunction would be dissolved. But, besides this, there is another objection fo it, apparent upon the face of t he bill. The payments, for which the plaintiffs insist, that the plaintiff, William, was entitled to a credit on the executions in the hands of the defendant, was a matter solely between the said William and the defendant. The bill does not state, that the plaintiff, John, was surety to the debt, for which the decree was obtained against William. It only says, that the plaintiff, John, was the father and surety of the plaintiff, William, without stating for what debt or in what manner he was surety. He was not, then, for all that appears, interested in the state of the accounts between his son and the defendant, and, having voluntarily entered into the agreement for the submission to arbitration of the subject of dispute between his son and the defendant, and an award having been made thereon, he cannot have relief, except by impeaching the award for fraud or mistake, in the agreement for the submission or in the award itself. But there is nothing stated in the bill to raise those objections. The only allegation is, that t he agreement was artfully written by a son in law of the defendant, so as to prevent the arbitrator from considering and allowing any other payments made by the plaintiff, William, than those for which he had written receipts, contrary to the express understanding between the plaintiff, John, and the defendant; but it is not said, that the defendant procured the instrument to be so written, or that the parties gave the writer instructions, which he either perverted or mistook. The utmost effect, which can be given to the state ment in the bill, that the agreement was artfully written by a son-in-law of the defendant, is, that it insinuates a fraud, which cannot be taken, as a direct and positive charge; and without such a charge the plaintiffs will not be permitted to prove the fraud, and, of course, can have no relief on account of it. Story’s Eq. P. ch. 2 sec. 28 and ch. 5 sec. 255. The order made in the Court below, dissolving the injunction, is affirmed, but the answer of the defendant contains so many immaterial and irrelevant statements, which, so far from being responsive to the bill or necessary to his defence, tend only to show that he was grossly and criminally negligent of his official duty, as sheriff, that we cannot give him costs.

Per Curiam.

Decree accordingly.  