
    HANNAH SMITH by her next friend against FRANKLIN C. SMITH AND THE BANK OF WADESBOROUGH.
    ■Although courts of equity, usually, refuse to restrain a trespass by a'writ' of injunction; yet, Where property was bequeathed to the separate use of a feme covert, without any trustee being appointed by the will, and the property was about to be sold under an execution against the husband, for his . debt, it was Held that the legal estate being in the husband, and,, therefore, there being no one to sue for the trespass, the Court wo.uld inter-; fere to protect the property by means of a writ of injunction.
    Appeal from the Court of Equity of Richmond county, frotó an interlocutory order made by Saunders, J. '
    ■ Upon the bill and answers, the case appears to be' 'this': Jonathan ITailey, of Richmond county, the father of the plain1 tiff, by his will, dated January, 1855, bequeathed as follows fC I give to my daughter Hannah, the wife of Eranklin C. Smith, my slaves, Lydia, Jim, Reuben and Hannah, to the :6ole and exclusive use of the said Hannah Smith, separate and apart from all control, or ownership of her said husband, and free from all liability for his debts or contracts, for and during her natural life, and at her death, to her daughter Alice, and all such children as she may have then living, share and share alike, it being my express will, that the said Eranklin C. Smith shall have no interest, trust, or property, either at law or in equity, in or to the said negroes.” After the death of the testator, the slaves went into the possession of the plaintiff, br hor'lmsband, by the assent of the executor, as the bill states. One of the slaves, Jim, about seventeen years of age, was roguoish and unmanageable, and the plaintiff, and her husband, concurred in thinking it was best to dispose of him, and the bill states that it was agreed between them, in October, 1855, that the husband should carry him off and exchange him for a female slave, that could serve in the house, or sell him,'and invest the proceeds in such a female* to be held in the place of Jim, and that accordingly, Smith took Jim to Richmond, Yirginia, and soon after brought back a negro girl by the nam,e of Harriet, about thirteen years of -age, whom, he said, lie had received in exchange for Jim, and also the sum of $125, to boot, and he delivered the said girl to the plaintiff, and she accepted her, in the place of Jim, agreeing, that he should retain the money for his time, trouble and expense in the transaction ; that the plaintiff claimed Harriet, and held her as her separate property, under her father’s will, up to August, 1858, when the sheriff of Eichmond seized her under a fieri facias, on a judgment, at the instance of the Bank of Wadesborough, against Eranklin C. Smith' and others, and advertised her for sale as the property of Smith, the husband; and then this bill was filed by Mrs. Smith, by her next friend, ■who was the father’s executor, against the Bank of Wadesborough and her husband, praying that the husband may be declared to hold the said Harriot in the place of Jim, in trust for her separate use, during her life, and then for her daughter Alice, and such other child, or children, as she may have, and that the said negroes may be properly settled upon a fit trustee, according to the purposes and trusts of the, will; and that, in the mean while, the defendants may be restrained by injunction, from proceeding to sell the, slave Harriet. Upon the bill an injunction was granted as prayed for.
    The answer of Smith, admits all, the material allegations of the bill, and submits that all the negroes, including Harriet, shall be conveyed to such trustees as the Court may designate, and settled upon the trusts declared in the will.
    The answer of the other defendant, the Bank of Wadesborough, admits the bequest of the negroes by the will, and that Mark Hailey, the executor, assented to some of the legacies, but denies that ho assented to the legacy of Jim, and states that Smith, the husband, as the defendant believes, took Jim against the assent of the executor, and without his knowledge. It admits the character imputed in the bill to the negro, Jim, but denies that the plaintiff requested her husband, or agreed with him, that he should carry Jim off and exchange him for a negro girl, or sell him, and with the proceeds purchase a girl in his place ; and states that Jim was carried off against the will and decided opposition of the plaintiff. It also denies that Jim was exchanged for Harriet, or that Harriet was purchased with the proceeds of Jim, or was ever delivered to the plaintiff by her husband, or by her accepted in place of Jim. It states that about the time Smith went off with Jim, lie borrowed twelve or fourteen hundred dollars, and on his return, stated that on the trip, he purchased Harriet and another negro, and sold the latter before he got back, that Smith took a bill of sale for Harriet in ins own name, as the absolute owner, and claimed her as his own property, and frequently offered to sell her, saying he could make a good .title, and no elaim was set up to her by the plaintiff until after the Bank got the judgment against her husband, when, after becoming insolvent, he executed to the plaintiff a bill of sale for Harriet, with the intent lo defraud his creditors, and-absconded. The answer admits the seizure of Harriet on the execution, and the intention to sell her under it, as the'-p'roperty of Smith.
    Upon this answer, the counsel for the Bank of "Waderiaorough, moved to dissolve the injunction, which was refused, and the Bank appealed. ■
    
      llelly and Dargan, for plaintiff.
    
      Banks and Osborne, for defendant.
   Ruffin, <L

Although the order in the Court of Equity does not declare the grounds on which it was made, yet, in. the opinion of the Court, enough appears in the pleadings, to sustain it. Equity does not usually interfere to restrain á'trés'pass, but leaves the party to legal redress. But, both from the nature of the propertjq and the peculiarity of the situation in which the parties stand, the plaintiff is entitled to relief. The .bequest is plainly, and expressly to the separate use of the wife, with a remainder to a.ehild then born, and to such others as may come m esse. But no trustee is nominated, and, therefore, the legacy, as far, at least, as the estate of the wife is' concerned, vested jure mariti, in the husband. But, in thk Court, he stands as trustee for her, upon the clear intent, that lie should not take for his own benefit, but that she should enjoy, for her life, as if she were sole, Parker v. Brooke, 9 Ves. 583; Steel v. Steel, 1 Ire. Eq. 452. He, then having the legal title, though on trust, could not maintain an action against •the sheriff for taking the slave as his property, nor against the purchaser from the sheriff. It is possible that obstacles may present themselves in the way of getting the full relief asked, (that of a settlement of all the negroes in trust for the plaintiff for life, and then for her children,) both from the nature of the limitation in remainder to the children, and from the fact, that the children are not parties. But wo are not to deal with that question now, nor to anticipate the effect on the injunction of amending the bill, by bringing in the children. The controversy, at present, concerns the interest of the plaintiff alone. She has, unquestionably an estate to her separate use in the negroes, and that is purely an equitable interest that can he asserted only in this Court, and will be protected in this Court, because she has either no trustee, or none that can, in the actual condition of tilings, make- the title available at htw, so as to secure her equitable interest.

Thus far the jurisdiction has been considered, as if the controversy was touching the negroes specifically bequeathed ; in which case, as the separate use of the wife, is beyond all doubt, the Court holds that she would bq entitled to an injunction against the husband to restrain his alienation in breach of the trust, and to a decree securing the property to her by a proper settlement, with a fit trustee, and, therefore, that she is equally entitled to a similar relief against the creditor of the husband, endeavoring to effect a similar breach of trust, by a sale under execution, wherein the purchaser could only get (if any thing) the naked legal title of the husband, and would bold it, in the view of this Court, on the same trusts as attached to it in the hands of the husband; Freeman v. Hill, 1 Dev. and Bat. Eq. 389; Polk v. Gallant, 2 Dev. and Bat. Eq. 395. This, however, is not the case of a seizure 5f one of the slaves bequeathed to the separate use of the plaintiff, but of a slave which, the hill alleges, w-as got in exchange for one of them by the husband, acting as the agent of the plaintiff, by an agreement between her and her husband, or purchased by him for her with the price obtained for one of the original slaves, necessarily sold for his faults, and accepted by her in his stead. It must be admitted, that on those positions, if denied by the defendants, the onus is on the plaintiff. She must show that she has the same equity attaching to the slave in controversy, which she had in the one her father gave her. That, she will not establish by merely showing that her husband sold one of hers, and afterwards bought this one; for that would not give her a specific equit}r to this slave, that could defeat the husband’s creditor by judgment and execution. She must go further, and show affirmatively, that, in. fact, she took this negro for the other, by a contract, to that effect, with her husband, or, as the bill is framed, that in truth, she made the husband, by an agreement beforehand, her agent to make the sale and purchase for her, so that this negro should take the place, as a part of her separate property, of the one sold. It results from the nature of separate property in a wife, that she and the husband may deal, in respect to it, and that he may act as her agent in making sales and purchases ; which is so well established, as to need no citation of authority to sustain it. Now, in the case before the Court, there are strong circumstances, in admitted facts, tending to establish the allegations of the bill on that head, although, as a conclusion from those facts, the answer does not admit the agency of the husband in making an exchange of negroes, nor in selling the one, or investing the proceeds in the other, but formally denies them, according to the belief of the defendants, and the alleged declarations of the husband. But the answer docs not profess to state any knowledge of the defendant on that point, and, therefore, cannot, with propriety, directly deny the conclusion. , It is the common case of the admission of the main equity of a bill and bringing forward new matter in avoidance; and on such an answer, it is the rule of the Court not to dissolve an injunction, when the object, and only effect of it, is to secure the property until the right to it can be adjudged on the proofs of the parties. That Jim belonged to the plaintiff; that he was taken away by the husband for sale; that he was sold upon necessity, for his faults; that the husband was from home not longer than was requisite to sell one negro and buy another at Richmond; that he brought back the girl, and that she remained in the possession of him and his wife, with the other negroes bequeathed to her from October, 1855, to August, 1858; that lie was needy and in failing circumstances, and not likely to buy and hold property on his own account, nor able to do so, all tend to sustain the right alleged in the bill, and are by no means refuted by the statement that lie took the deed to himself, or spoke of the girl as his, or offered to sell her. Eor, if he had taken the deed to his wife, the title, at law, would have been in him, and, therefore, it is not material how that fact was, nor how he said it was. The case, therefore, is a proper one for continuing the injunction to the hearing ; and so it must be certified to the Court of Equity ; and the appellant must pay the costs of this Court!

Per Curiam, Order affirmed.  