#### JOHN McLERAN *and wife against*JAMES K. MELVIN *and another.*

The writ of *certiorari*will lie to bring up a cause from a court of Equity to the Supreme Court, where a sufficient reason is shown for not appealing.

Where the person really interested in a cause in Equity was a feme covert, upon a statement made by her husband, who had joined her in the suit, showing’ that an injunction to restrain an execution levied on her property had been improperly dissolved; that he was absent from court upon urgent business when the decree was made-; that his attorney had told him his presence would not bo required at the trial; that his attorney had endeavored to procure surety for an appeal without success; and that he would have appealed if he had been present; it was *Held*to be- a sufficient cause for granting a certiorari.

One who has entered into a deed, as a trustee, will not be heard to gainsay the title of the property conveyed to him by the deed.

CbbtioraRI to bring up a cause from the Court of Equity of New Hanover.

John Melvin, of the county of Pladen, bequeathed, amongst other provisions, a negro girl, Eliza, (the subject of this suit,) to his daughter Mary Eliza, with a proviso that her mother should keep possession of the said slave until her said daughter arrived at the age of twenty-one. The testator died in 1844. The will was duly proven, and the executor therein named was qualified.

In the month of January, 1846, the feme plaintiff, Mary Eliza, then eighteen years old, intermarried with the other plaintiff, John McLeran, but previously to such marriage, and in contemplation thereof, all the property belonging to her as well as all that she might thereafter acquire from her *196mother, and especially the slave Eliza and her child, Hams, were, with the consent of the executor, conveyed by a deed of settlement, dated 11th day of Januaiy, 184-6, to the defendant James II. Melvin, her brother, in trust, that he should hold the said property for the sole and separate use of the said Mary Eliza and her children, free from all liability to the debts of her intended husband, but that he might remain in possession of the property, he devoting the profits to the use of the intended wife and her children, if any should be born of the marriage. The said deed of settlement was also executed by the intended husband and by the defendant James K. Melvin, and duly proven and registered.

The plaintiff McLeran becoming indebted to the defendant Melvin, gave his bond for the amount due, to wit, $595, which, without consideration, was endorsed to the defendant McDou-gald, in order to facilitate the collection of it. A suit was brought in McDougald’s name against the plaintiff McLeran and against Melvin as endorser, and judgment recovered in the County Court of Bladen for the debt aud costs, and a fi. fa. being directed to the sheriff, at the instance of the defendant Melvin, the same was levied upon the slave Eliza and one of her children, she having had several after the conveyance. It is averred by the plaintiffs, and admitted by the defendants, that the endorsement to McDougald was merely formal, and that the entire interest in the judgment is in the defendant Melvin, and that he has directed the whole proceeding against .the property in question.

The prayer of the bill is for an injunction and for general ■relief.

The defendant Melvin, in his answer, insists that Mary Eliza Melvin being an infant when she executed the deed, the same is invalid, and that the property, notwithstanding such deed, vested in the husband, and is liable to his debts. He also contends that Mrs. McLeran took a contingent interest in the slave in question, which did not become vested until after the marriage, and which did not pass by the deed in question, *197but went to tlie husband *mariti.*The answer was, otherwise, irresponsive to the allegations in the bill.

197

McDougald disclaimed any knowledge or interest in the matter.

On the coming in of the answers, his Honor, Judge PeesoN, ordered the injunction to be dissolved and an appeal was prayed, but no surety was given.

The plaintiff McLeran applied to the Supreme. Court for a certiorari, alleging that he was not present-when the cause was heard upon the motion to dissolve; that he was absent upon urgent business and did not return to "Wilmington where the Court sat, until after the final adjournment of the Court; that he was informed by his counsel that his presence would not be required at the hearing of the cause, and that he therefore took no pains to provide surety for an appeal; that his counsel, in his absence, made exertions to procure security for an appeal to the Supreme Court, without success. The writ was ordered, and the case brought up under it. On opening the cause for further proceedings, it was contended by the defendants’ counsel, that the cause was improperly brought up, for that this Court had no power to issue the writ of certiorari to bring up a cause, and moved to dismiss the proceeding. The motion to dissolve the injunction was also debated at the same time.

*W. A. Wright,*Tor plaintiffs.

*JS. -Q.*Haywood, for defendants.

Battle, J.

The first question which this case presents is, whether it is properly constituted in the Court. The counsel for the defendants contend, that the writ of *certiorari*will not lie to bring up any cause from the Courts of Equity to the Supremo Court, but that if it will, this is not a proper case for its application. The ground of objection to the use of the writ in an equity cause is, that there is no such necessity for it, as there is in a suit at law, and that, therefore, it ought not to be allowed; and further, that no instance of its allowance *198heretofore can. be shown. The reason alleged, to show that there is no necessity for its use is, that if there be error in any order or decree in Equity, it may be corrected upon a petition to rehear, or a bill of review. The obvious reply is, that except in the highest tribunal for the decision of equity *causes,*these remedies are inadequate, because the parties will still have a right to carry the cause up to the highest court, and it will be an unnecessary and unreasonable delay to prevent their doing so, in the first instance by an appeal, or, if that be lost without the default of the party seeking it, by a proceeding in the nature of an appeal. This delay, in a case like the present, of an order dissolving an injunction, will often put the part}1, to a serious, if not fatal, inconvenience, and ought to be avoided, if possible. *~We*think it may be avoided by giving a fair construction to the provisions of the Hevised Code upon this subject. In the 6th section of the 33rd chapter, (the act which establishes the Supreme Court) it is enacted that “ the court shall have power to hear and determine all questions at law brought before it, by appeal, or otherwise, from a Superior Court of' law, and to hear and determine all cases in Equity by an appeal, or removal from a court of equity;” and in another paragraph of the same section, it is declared that the Court “ shall also have power *t&>*issue writs of *certiorari, scire f acias, habeas corpus, mai&da-mus,*and all other writs which may be proper and necessary for the exei’eise of its jurisdiction, and agreeable to the principles and usages of law, &c.” The 22nd section of the 4th chapter, provides that “ appeals shall loe allowed from any final judgment, sentence or decree of the Superior Court of law, or court of equity, court of oyer and terminer and the next succeeding section declares that “ the' Superior Court may, whenever it shall be deemed proper, alfew an appeal to the Supreme Court from any interlocutory judgment, sentence, or decree, at law, or in equity, at the instance of the party dissatisfied therewith, upon such terms as shall appear to the Court just and equitable.”. The 25th section of the same act makes it the duty of the clerk of the Superior Court *199of law, and the clerk and master in equity, to file with the clerk of the Supreme Court, in proper time, a transcript of the record and proceedings of the causes in their respective courts, in which appeals have been taken; though by the section which next follows, the appellant himself may file the transcript if he chooses. It is seen by a reference to these enactments, that the right of appeal from the judgments or decrees final or interlocutory, of the Superior Courts of law and the Courts of Equity, to the Supreme, is put upon the same footing in every respect. If this right be lost in any case in a Superior Court of law, without any default of the appellant-, it is admitted that he may take his case up by the writ of certiorari, and we cannot perceive any sufficient reason why he may not have the same mode of taking up a case from a Court of Equity under similar circumstances. Suppose that, upon a petition to rehear, or a bill of review, the cause were decided against him a second time, and he should, without the slightest negligence, make another ineffectual attempt to appeal, would he bo without redress ? Can any other mode than that by a writ of *certiorari*be devised for him to have his cause reviewed in the highest tribunal of the State? Until such be brought to our attention we shall feel ourselves bound to give to the party praying an appeal, and prevented by unavoidable obstacles from availing himself of it, the benefit of that writ. The circumstances-of the present case fully entitle the party to the favour of the Court. It is in truth the case of the wife, and if the husband had been less attentive than he.was, we should think that her interest ought to be protected so far, at least, as to have it passed upon by this Court. '

The cause being thus properly before us, wre have- no hesitation in saying that the order dissolving the injunction was erroneous and ought to be reversed. The counsel for the defendants have contended in support, of the order, 1st, that at the time of her marriage, Mary Eliza Melvin was under age, and could not, on that account, make a valid conveyance of her slaves so as to prevent their becoming the property of *200her husband. 2ndly. That she took a contingent interest only in tlie slaves under the will of her father, which did not pass by the conveyance to her trustee; and that when they became vested, it was after her marriage, and that thereby they became the property of her husband, and liable to be seized for his debts. The first of these propositions is directly opposed by the cases of *Freeman*v. *Cook,*6 Ire. Eq. Rep. 373, and *Satterfield*v. Riddick, 8 Ire. Eq. Rep. 271, and the reason given for the decisions is unreasonable, to wit, “ that it cannot be to her prejudice, but must be to her advantage, if it secure to her or her issue any thing; since, without the settlement, the whole would go to her husband, absolutely, on her marriage.” The other proposition we deem it unnecessary to decide, because the trustee cannot be allowed to urge it, even supposing it were true, and the consequence deducible from it legitimate. The defendant Melvin has, by his solemn deed, agreed to accept the conveyance, and to hold the slaves, in trust, for the sole and separate use of his, sister; and it would violate every principle of justice and fair dealing to allow him now to repudiate the title in himself, and treat the slaves as the property of the husband by subjecting them to the payment of his debts against the husband. The interlocutory order from which the appeal is taken, must be reversed, with costs against both defendants, which will be certified to the Court of Equity below.

Feb Cueiam, . Decree accordingly.